IV.

TORTURE.

## CHAPTER I.

TORTURE IN EGYPT AND ASIA.

The preceding essays have traced the development of sacramental purgation and of the ordeal as resources devised by human ingenuity and credulity when called upon to decide questions too intricate for the impatient intellect of a rude and semi-barbarous age. There was another mode, however, of attaining the same object which has received the sanction of the wisest lawgivers during the greater part of the world’s history, and our survey of man’s devious wanderings in the search of truth would be incomplete without glancing at the subject of the judicial use of torture. The ordeal and torture, in fact, are virtually substitutes for each other. It will be seen that they have rarely coexisted, and that, as a general rule, the legislation which depended on the one rejected the other.

In the early stages of society, the judge or the pleader whose faith does not lead him to rely upon an appeal to God naturally seeks to extort from the reluctant witness a statement of what he might desire to conceal, or from the presumed criminal a confession of his guilt. To accomplish this, the readiest means would seem to be the infliction of pain, to escape from which the witness would sacrifice his friends, and the accused would submit to the penalty of his crime. The means of administering graduated and effectual torment would thus be sought for, and the rules for its application would in time be developed into a regular system, forming part of the recognized principles of jurisprudence.

In the earliest civilization, that of Egypt, it would seem as though torture was too opposed to the whole theory of judicial proceedings to be employed, if we are to believe the description which Diodorus Siculus gives of the solemn and mysterious tribunals, where written pleadings alone were allowed, lest the judges should be swayed by the eloquence of the human voice, and where the verdict was announced, in the unbroken silence, by the presiding judge touching the successful suitor with an image of the Goddess of Truth.[1376] Yet a papyrus recently interpreted gives us a judicial record of a trial, in the reign of Rameses IX. of the XXth Dynasty (circa 1200 B. C.), of the robbers of the tomb of the Pharaoh Sebakemsauf, and this shows how the accused, after confession, were tortured for confirmation, first by scourging and then by squeezing the hands and feet, showing that, sometimes at least, this mode of ascertaining the truth was employed.[1377]

Among the Semitic races we find torture used as a regular judicial process by the Assyrians,[1378] though the Mosaic jurisprudence is free from any indication that the Hebrew law-dispensers regarded it as a legitimate expedient. Earnest advocates of the torture system, in the eighteenth century, however, did not hesitate to adduce the ordeal of the bitter water of jealousy as a torture which justified the employment in modern times of the rack and strappado.

In the earliest Aryan records, so far as we can judge from the fragments remaining of the Zoroastrian law, torture had no recognized place. Astyages was rather a Mede than a Persian, and therefore no conclusion can be drawn from his readiness to employ it when he sought to extort the truth from unwilling witnesses, as related by Herodotus;[1379] but the savage punishments which Darius boasts of inflicting upon the rival pretenders to his throne[1380] presuppose a readiness to resort to the most violent means of intimidation, which could scarcely fail to include torture as an extra-judicial means of investigation when milder methods failed.

To the other great branch of the Aryan stock which founded the Indian civilization, torture would likewise seem to have been unknown as a legitimate resource; at least it has left no trace of its existence in the elaborate provisions of the Hindu law as handed down to us for nearly three thousand years. In the Institutes of Manu there are very minute directions as to evidence, the testimony preferred being that of witnesses, whose comparative credibility is very carefully discussed, and when such evidence is not attainable, the parties, as we have seen above, are ordered to be sworn or tried by the ordeal. These principles have been transmitted unchanged to the present day.[1381]

In China the juristic principles in force would seem to allow no place for the use of torture (_ante_, p. 251), though doubtless it may be occasionally resorted to as an extra-judicial expedient. In Japan it still retains its place in the criminal codes, though we may well believe the assertion that practically its use has been discarded in the progress of modern enlightenment. As to its former employment, however, the directions are very explicit. In the milder form of scourging it might be used in all preliminary examinations. Where reasonable moral certainty existed of guilt in serious and capital crimes, the severer inflictions, by fire, by various mechanical devices, by deprivation of food and sleep or by exposure to venomous reptiles, could be invoked to extort confession, the accused being notified in advance that it would be used if he persisted in asserting his innocence, and the official ordering it being held personally responsible for its undue or improper employment.[1382]

## CHAPTER II.

GREECE AND ROME.

The absence of torture from the codes of the elder Aryan races is not to be attributed to any inherent objection to its use, but rather to the employment of the ordeal, which in all ages formed part of their jurisprudence, and served as an unfailing resort in all doubtful cases. When we turn to the Aryans who established themselves in Europe and abandoned the ancestral custom of the ordeal, we find it at once replaced by the use of torture. Thus in Greece torture was thoroughly understood and permanently established. The oligarchical and aristocratic tendencies, however, which were so strongly developed in the Hellenic commonwealths, imposed upon it a limitation characteristic of the pride and self-respect of the governing order. As a general rule, no freeman could be tortured. Even freedmen enjoyed an exemption, and it was reserved for the unfortunate class of slaves, and for strangers who formed no part of the body politic. Yet there were exceptions, as among the Rhodians, whose laws authorized the torture of free citizens; and in other states it was occasionally resorted to, in the case of flagrant political offences; while the people, acting in their supreme and irresponsible authority, could at any time decree its application to any one irrespective of privilege. Thus, when Hipparchus was assassinated by Harmodius, Aristogiton was tortured to obtain a revelation of the plot, and several similar proceedings are related by Valerius Maximus as occurring among the Hellenic nations.[1383] The inhuman torments inflicted on Philotas, son of Parmenio, when accused of conspiracy against Alexander, show how little real protection existed when the safety of a despot was in question; and illustrations of torture decreed by the people are to be seen in the proceedings relative to the mutilation of the statues of Hermes, and in the proposition, on the trial of Phocion, to put him, the most eminent citizen of Athens, on the rack.

In a population consisting largely of slaves, who were generally of the same race as their masters, often men of education and intelligence and employed in positions of confidence, legal proceedings must frequently have turned upon their evidence, in both civil and criminal cases. Their evidence, however, was inadmissible, except when given under torture, and then, by a singular confusion of logic, it was estimated as the most convincing kind of testimony. Consequently, the torturing of slaves formed an important portion of the administration of Athenian justice. Either party to a suit might offer his slaves to the torturer or demand those of his opponent, and a refusal to produce them was regarded as seriously compromising. When both parties tendered their slaves, the judge decided as to which of them should be received. Even without bringing a suit into court, disputants could have their slaves tortured for evidence with which to effect an amicable settlement.

In formal litigation, the defeated suitor paid whatever damages his adversary’s slaves might have undergone at the hands of the professional torturer, who, as an expert in such matters, was empowered to assess the amount of depreciation that they had sustained. It affords a curious commentary on the high estimation in which such testimony was held to observe that, when a man’s slaves had testified against him on the rack, they were not protected from his subsequent vengeance, which might be exercised upon them without restriction.

As the laws of Greece passed away, leaving few traces on the institutions of other races, save on those of Rome, it will suffice to add that the principal modes in which torture was sanctioned by them were the wheel, the ladder or rack, the comb with sharp teeth, the low vault, in which the unfortunate patient was thrust and bent double, the burning tiles, the heavy hogskin whip, and the injection of vinegar into the nostrils.[1384]

In the earlier days of Rome, the general principles governing the administration of torture were the same as in Greece. Under the Republic, the free citizen was not liable to it, and the evidence of slaves was not received without it. With the progress of despotism, however, the safeguards which surrounded the freeman were broken down, and autocratic emperors had little scruple in sending their subjects to the rack.

Even as early as the second Triumvirate, a prætor named Q. Gallius, in saluting Octavius, chanced to have a double tablet under his toga. To the timid imagination of the future emperor, the angles of the tablet, outlined under the garment, presented the semblance of a sword, and he fancied Gallius to be the instrument of a conspiracy against his life. Dissembling his fears for the moment, he soon caused the unlucky prætor to be seized while presiding at his own tribunal, and, after torturing him like a slave without extracting a confession, put him to death.[1385]

The incident was ominous of the future, when all the powers of the state were concentrated in the august person of the emperor. He was the representative and embodiment of the limitless sovereignty of the people, whose irresponsible authority was transferred to him. The rules and formularies which had regulated the exercise of power, so long as it belonged to the people, were feeble barriers to the passions and fears of Cæsarism. Accordingly, a principle soon became engrafted in Roman jurisprudence that, in all cases of _crimen majestatis_, or high treason, the free citizen could be tortured. In striking at the ruler he had forfeited all rights, and the safety of the state, as embodied in the emperor, was to be preserved at every sacrifice.

The emperors were not long in discovering and exercising their power. When the plot of Sejanus was discovered, the historian relates that Tiberius abandoned himself so entirely to the task of examining by torture the suspected accomplices of the conspiracy, that when an old Rhodian friend, who had come to visit him on a special invitation, was announced to him, the preoccupied tyrant absently ordered him to be placed on the rack, and on discovering the blunder had him quietly put to death, to silence all complaints. The shuddering inhabitants pointed out a spot in Capri where he indulged in these terrible pursuits, and where the miserable victims of his wrath were cast into the sea before his eyes, after having exhausted his ingenuity in exquisite torments.[1386] When the master of the world took this fearful delight in human agony, it may readily be imagined that law and custom offered little protection to the defenceless subject, and Tiberius was not the only one who relished these inhuman pleasures. The half-insane Caligula found that the torture of criminals by the side of his dinner-table lent a keener zest to his revels, and even the timid and the beastly Claudius made it a point to be present on such occasions.[1387]

Under the stimulus of such hideous appetites, capricious and irresponsible cruelty was able to give a wide extension to the law of treason. If victims were wanted to gratify the whims of the monarch or the hate of his creatures, it was easy to find an offender or to make a crime. Under Tiberius, a citizen removed the head from a statue of Augustus, intending to replace it with another. Interrogated before the Senate, he prevaricated, and was promptly put to the torture. Encouraged by this, the most fanciful interpretation was given to violations of the respect assumed to be due to the late emperor. To undress one’s self or to beat a slave near his image; to carry into a latrine or a house of ill fame a coin or a ring impressed with his sacred features; to criticize any act or word of his became a treasonable offence; and finally an unlucky wight was actually put to death for allowing the slaves on his farm to pay him honors on the anniversary which had been sacred to Augustus.[1388]

So, when it suited the waning strength of paganism to wreak its vengeance for anticipated defeat upon the rising energy of Christianity, it was easy to include the new religion in the convenient charge of treason, and to expose its votaries to all the horrors of ingenious cruelty. If Nero desired to divert from himself the odium of the conflagration of Rome, he could turn upon the Christians, and by well-directed tortures obtain confessions involving the whole sect, thus giving to the populace the diversion of a persecution on a scale until then unknown, besides providing for himself the new sensation of the human torches whose frightful agonies illuminated his unearthly orgies.[1389] Diocletian even formally promulgated in an edict the rule that all professors of the hated religion should be deprived of the privileges of birth and station, and be subject to the application of torture.[1390] The indiscriminate cruelty to which the Christians were thus exposed without defence, at the hands of those inflamed against them by all evil passions, may, perhaps, have been exaggerated by the ecclesiastical historians, but that frightful excesses were perpetrated under sanction of law cannot be doubted by any one who has traced, even in comparatively recent times and among Christian nations, the progress of political and religious persecution.[1391]

The torture of freemen accused of crimes against the state or the sacred person of the emperor thus became an admitted principle of Roman law. In his account of the conspiracy of Piso, under Nero, Tacitus alludes to it as a matter of course, and in describing the unexampled endurance of Epicharis, a freedwoman, who underwent the most fearful torments without compromising those who possessed little claim upon her forbearance, the annalist indignantly compares her fortitude with the cowardice of noble Romans, who betrayed their nearest relatives and dearest friends at the mere sight of the torture chamber.[1392]

Under these limits, the freeman’s privilege of exemption was carefully guarded, at least in theory. A slave while claiming freedom, or a man claimed as a slave, could not be exposed to torture;[1393] and even if a slave, when about to be tortured, endeavored to escape by asserting his freedom, it was necessary to prove his servile condition before proceeding with the legal torments.[1394] In practice, however, these privileges were continually infringed, and numerous edicts of the emperors were directed to repressing the abuses which constantly occurred. Thus we find Diocletian forbidding the application of torture to soldiers or their children under accusation, unless they had been dismissed the service ignominiously.[1395] The same emperor published anew a rescript of Marcus Aurelius declaring the exemption of patricians and of the higher imperial officers, with their legitimate descendants to the fourth generation;[1396] and also a dictum of Ulpian asserting the same privilege in favor of decurions, or local town councillors, and their children.[1397] In 376, Valentinian was obliged to renew the declaration that decurions were only liable in cases of _majestas_, and in 399 Arcadius and Honorius found it necessary to declare explicitly that the privilege was personal and not official, and that it remained to them after laying down the decurionate.[1398] Theodosius the Great, in 385, especially directed that priests should not be subjected to torture in giving testimony,[1399] the significance of which is shown by the fact that no slave could be admitted to holy orders.

The necessity of this constant repetition of the law is indicated by a rescript of Valentinian, in 369, which shows that freemen were not infrequently tortured in contravention of law; but that torture could legally be indiscriminately inflicted by any tribunal in cases of treason, and that in other accusations it could be authorized by the order of the emperor.[1400] This power was early assumed and frequently exercised. Though Claudius at the commencement of his reign had sworn that he would never subject a freeman to the question, yet he allowed Messalina and Narcissus to administer torture indiscriminately, not only to free citizens, but even to knights and patricians.[1401] So Domitian tortured a man of prætorian rank on a doubtful charge of intrigue with a vestal virgin,[1402] and various laws were promulgated by several emperors directing the employment of torture irrespective of rank, in some classes of accusations. Thus, in 217, Caracalla authorized it in cases of suspected poisoning by women.[1403] Constantine decreed that unnatural lusts should be punished by the severest torments, without regard to the station of the offender.[1404] Constantius persecuted in like manner soothsayers, sorcerers, magicians, diviners, and augurs, who were to be tortured for confession, and then to be put to death with every refinement of suffering.[1405] So, Justinian, under certain circumstances, ordered torture to be used on parties accused of adultery[1406]—a practice, however, which was already common in the fourth century, if we are to believe the story related by St. Jerome of a miracle occurring in a case of this nature.[1407] The power thus assumed by the monarch could evidently be limited only by his discretion in its exercise.

One important safeguard, however, existed, which, if properly maintained, must have greatly lessened the frequency of torture as applied to freemen. In bringing an accusation the accuser was obliged to inscribe himself formally, and was exposed to the _lex talionis_ in case he failed to prove the justice of the charge.[1408] A rescript of Constantine, in 314, decrees that in cases of _majestas_, as the accused was liable to the severity of torture without limitation of rank, so the accuser and his informers were to be tortured when they were unable to make good their accusation.[1409] This enlightened legislation was preserved by Justinian, and must have greatly cooled the ardor of the pack of calumniators and informers, who, from the days of Sylla, had been encouraged and petted until they held in their hands the life of almost every citizen.

In all this it must be borne in mind that the freeman of the Roman law was a Roman citizen, and that, prior to the extension of citizenship generally to the subjects of the Empire, there was an enormous class deprived of the protection, such as it was, of the traditional exemption. Thus when, in Jerusalem, the Jews raised a tumult and accused St. Paul, without specifying his offence, the tribune forthwith ordered “that he should be examined by scourging, that he might know wherefore they cried so against him;” and when St. Paul proclaimed himself a Roman, the preparations for his torture were stopped forthwith, and he was examined by regular judicial process.[1410] The value of this privilege is fairly exemplified by the envying remark of the tribune, “With a great sum obtained I this freedom.”

All these laws relate to the extortion of confessions from the accused. In turning to the treatment of witnesses, we find that even with them torture was not confined to the servile condition. With slaves it was not simply a consequence of slavery, but a mode of confirming and rendering admissible the testimony of those whose character was not sufficiently known to give their evidence credibility without it. Thus a legist under Constantine states that gladiators and others of similar occupation cannot be allowed to bear witness without torture;[1411] and, in the same spirit, a novel of Justinian, in 539, directs that the rod shall be used to extract the truth from unknown persons who are suspected of bearing false witness or of being suborned.[1412]

It may, therefore, readily be imagined that when the evidence of slaves was required, it was necessarily accompanied by the application of torture. Indeed, Augustus declared that while it is not to be expressly desired in trifling matters, yet in weighty and capital cases the torture of slaves is the most efficacious mode of ascertaining the truth.[1413] When we consider the position occupied by slavery in the Roman world, the immense proportion of bondmen who carried on all manner of mechanical and industrial occupations for the benefit of their owners, and who, as scribes, teachers, stewards, and in other confidential positions, were privy to almost every transaction of their masters, we can readily see that scarce any suit could be decided without involving the testimony of slaves, and thus requiring the application of torture. It was not even, as among most modern nations, restricted to criminal cases. Some doubt, indeed, seems at one time to have existed as to its propriety in civil actions, but Antoninus Pius decided the question authoritatively in the affirmative, and this became a settled principle of Roman jurisprudence, even when the slaves belonged to masters who were not party to the case at issue.[1414]

There was but one limitation to the universal liability of slaves. They could not be tortured to extract testimony against their masters, whether in civil or criminal cases;[1415] though, if a slave had been purchased by a litigant to get his testimony out of court, the sale was pronounced void, the price was refunded, and the slave could then be tortured.[1416] This limitation arose from a careful regard for the safety of the master, and not from any feeling of humanity towards the slave. So great a respect, indeed, was paid to the relationship between the master and his slave that the principle was pushed to its fullest extent. Thus even an employer, who was not the owner of a slave, was protected against the testimony of the latter.[1417] When a slave was held in common by several owners, he could not be tortured in opposition to any of them, unless one were accused of murdering his partner.[1418] A slave could not be tortured in a prosecution against the father or mother of the owner, or even against the guardian, except in cases concerning the guardianship;[1419] though the slave of a husband could be tortured against the wife.[1420] Even the tie which bound the freedman to his patron was sufficient to preserve the former from being tortured against the latter;[1421] whence we may assume that, in other cases, manumission afforded no protection from the rack and scourge. This question, however, appears doubtful. The exemption of freedmen would seem to be proved by the rescript which provides that inconvenient testimony should not be got rid of by manumitting slaves so as to prevent their being subjected to torture;[1422] while, on the other hand, a decision of Diocletian directs that, in cases of alleged fraudulent wills, the slaves and even the freedmen of the heir could be tortured to ascertain the truth.[1423]

This policy of the law in protecting masters from the evidence of their tortured slaves varied at different periods. From an expression of Tacitus, it would seem not to have been part of the original jurisprudence of the Republic, but to have arisen from a special decree of the Senate. In the early days of the Empire, while the monarch still endeavored to veil his irresponsible power under the forms of law, and showed his reverence for ancient rights by evading them rather than by boldly subverting them, Tiberius, in prosecuting Libo and Silanus, caused their slaves to be transferred to the public prosecutor, and was thus able to gratify his vengeance legally by extorting the required evidence.[1424] Subsequent emperors were not reduced to these subterfuges, for the principle became established that in cases of _majestas_, even as the freeman was liable to torture, so his slaves could be tortured to convict him;[1425] and as if to show how utterly superfluous was the cunning of Tiberius, the respect towards the master in ordinary affairs was carried to that point that no slave could be tortured against a former owner with regard to matters which had occurred during his ownership.[1426] On the other hand, according to Ulpian, Trajan decided that when the confession of a guilty slave under torture implicated his master, the evidence could be used against the master, and this, again, was revoked by subsequent constitutions.[1427] Indeed, it became a settled principle of law to reject all incriminations of accomplices.

Having thus broken down the protection of the citizen against the evidence of his slaves in accusations of treason, it was not difficult to extend the liability to other special crimes. Accordingly we find that, in 197, Septimius Severus specified adultery, fraudulent assessment, and crimes against the state as cases in which the evidence of slaves against their masters was admissible.[1428] The provision respecting adultery was repeated by Caracalla in 214, and afterwards by Maximus,[1429] and the same rule was also held to be good in cases of incest.[1430] It is probable that this increasing tendency alarmed the citizens of Rome, and that they clamored for a restitution of their immunities, for, when Tacitus was elected emperor, in 275, he endeavored to propitiate public favor by proposing a law to forbid the testimony of slaves against their masters except in cases of _majestas_.[1431] No trace of such a law, however, is found in the imperial jurisprudence, and the collections of Justinian show that the previous regulations were in full force in the sixth century.

Yet it is probable that the progress of Christianity produced some effect in mitigating the severity of legal procedure and in shielding the unfortunate slave from the cruelties to which he was exposed. Under the Republic, while the authority of the _paterfamilias_ was still unabridged, any one could offer his slaves to the torture when he desired to produce their evidence. In the earlier times, this was done by the owner himself in the presence of the family, and the testimony thus extorted was carefully taken down to be duly produced in court; but subsequently the proceeding was conducted by public officers—the quæstors and triumviri capitales.[1432] How great was the change effected is seen by the declaration of Diocletian, in 286, that masters were not permitted to bring forward their own slaves to be tortured for evidence in cases wherein they were personally interested.[1433] This would necessarily reduce the production of slave testimony, save in accusations of _majestas_ and other excepted crimes, to cases in which the slaves of third parties were desired as witnesses; and even in these, the frequency of its employment must have been greatly reduced by the rule which bound the party calling for it to deposit in advance the price of the slave, as estimated by the owner, to remunerate the latter for his death, or for his diminished value if he were maimed or crippled for life.[1434] When the slave himself was arraigned upon a false accusation and tortured, an old law provided that the master should receive double the loss or damage sustained;[1435] and in 383, Valentinian the Younger went so far as to decree that those who accused slaves of capital crimes should inscribe themselves, as in the case of freemen, and should be subjected to the _lex talionis_ if they failed to sustain the charge.[1436] This was an immense step towards equalizing the legal condition of the bondman and his master. It was apparently in advance of public opinion, for the law is not reproduced in the compilations of Justinian, and probably soon was disregarded.

* * * * *

There were some general limitations imposed on the application of torture, but they were hardly such as to prevent its abuse at the hands of cruel or unscrupulous judges. Antoninus Pius set an example, which modern jurists might well have imitated, when he directed that no one should be tortured after confession to implicate others;[1437] and a rescript of the same enlightened emperor fixes at fourteen the minimum limit of age liable to torture, except in cases of _majestas_, when, as we have seen, the law spared no one, for in the imperial jurisprudence the safety of the monarch overrode all other considerations.[1438] Women were spared during pregnancy.[1439] Moderation was enjoined upon the judges, who were to inflict only such torture as the occasion rendered necessary, and were not to proceed further at the will of the accuser.[1440] No one was to be tortured without the inscription of a formal accuser, who rendered himself liable to the _lex talionis_, unless there were violent suspicions to justify it;[1441] and Adrian reminded his magistrates that it should be used for the investigation of truth, and not for the infliction of punishment.[1442] Adrian further directed, in the same spirit, that the torture of slave witnesses should only be resorted to when the accused was so nearly convicted that it alone was required to confirm his guilt.[1443] Diocletian ordered that proceedings should never be commenced with torture, but that it might be employed when requisite to complete the proof, if other evidence afforded rational belief in the guilt of the accused.[1444]

What was the exact value set upon evidence procured by torture it would be difficult at this day to determine. We have seen above that Augustus pronounced it the best form of proof, but other legislators and jurists thought differently. Modestinus affirms that it is only to be believed when there is no other mode of ascertaining the truth.[1445] Adrian cautions his judges not to trust to the torture of a single slave, but to examine all cases by the light of reason and argument.[1446] According to Ulpian, the imperial constitutions provided that it was not always to be received nor always rejected; in his own opinion it was unsafe, dangerous, and deceptive, for some men were so resolute that they would bear the extremity of torment without yielding, while others were so timid that through fear they would at once inculpate the innocent.[1447] From the manner in which Cicero alternately praises and discredits it, we can safely assume that lawyers were in the habit of treating it, not on any general principle, but according as it might affect their client in any particular case; and Quintilian remarks that it was frequently objected to on the ground that under it one man’s constancy makes falsehood easy to him, while another’s weakness renders falsehood necessary.[1448] That these views were shared by the public would appear from the often quoted maxim of Publius Syrus—“Etiam innocentes cogit mentiri dolor”—and from Valerius Maximus, who devotes his chapter _De Quæstionibus_ to three cases in which it was erroneously either trusted or distrusted. A slave of M. Agrius was accused of the murder of Alexander, a slave of C. Fannius. Agrius tortured him, and, on his confessing the crime, handed him over to Fannius, who put him to death. Shortly afterwards, the missing slave returned home. This same Alexander was made of sterner stuff, for when he was subsequently suspected of being privy to the murder of C. Flavius, a Roman knight, he was tortured six times and persistently denied his guilt, though he subsequently confessed it and was duly crucified.[1449] A somewhat similar case gave Apollonius of Tyana an opportunity of displaying his supernatural power. Meeting in Alexandria twelve convicts on their way to execution as robbers, he pronounced one of them to be innocent, and asked the executioners to reserve him to the last, and, moreover, delayed them by his conversation. After eight had been beheaded, a messenger came in hot haste to announce that Phanion, the one selected by Apollonius, was innocent, though he had accused himself to avoid the torture.[1450] A curious instance, moreover, of the little real weight attached to such evidence is furnished by the case of Fulvius Flaccus, in which the whole question turned upon the evidence of his slave Philip. This man was actually tortured eight times, and refused through it all to criminate his master, who was nevertheless condemned.[1451] The same conclusion is to be drawn from the story told by St. Jerome of a woman of Vercelli repeatedly tortured on an accusation of adultery, and finally condemned to death in spite of her constancy in asserting her innocence, the only evidence against her being that of her presumed accomplice, extorted under torment.[1452] Quintus Curtius probably reflects the popular feeling on the subject, in his pathetic narrative of the torture of Philotas on a charge of conspiracy against Alexander. After enduring in silence the extremity of hideous torment, he promised to confess if it were stopped, and when the torturers were removed he addressed his brother-in-law Craterus, who was conducting the investigation: “Tell me what you wish me to say.” Curtius adds that no one knew whether or not to believe his final confession, for torture is as apt to bring forth lies as truth.[1453]

From the instances given by Valerius Maximus, it may be inferred that there was no limit set upon the application of torture. The extent to which it might be carried appears to have rested with the discretion of the tribunals, for, with the exception of the general injunctions of moderation alluded to above, no instructions for its administration are to be found in the Roman laws which have been preserved to us, unless it be the rule that when several persons were accused as accomplices, the judges were directed to commence with the youngest and weakest.[1454]

Since the time of Sigonius, much antiquarian research has been directed to investigating the various forms of torture employed by the Romans. They illustrate no principles, however, and it is sufficient to enumerate the rack, the scourge, fire in its various forms, and hooks for tearing the flesh, as the modes generally authorized by law. The Christian historians, in their narratives of the persecutions to which their religion was exposed, give us a more extended idea of the resources of the Roman torture chamber. Thus Prudentius, in his description of the martyrdom of St. Vincent, alludes to a number of varieties, among which we recognize some that became widely used in after times, showing that little was left for modern ingenuity to invent.[1455]

I have dealt thus at length on the details of the Roman law of torture because, as will be seen hereafter, it was the basis of all modern legislation on the subject, and has left its impress on the far less humane administration of criminal justice in Europe almost to our own day. Yet at first it seemed destined to disappear with the downfall of the Roman power.

## CHAPTER III.

THE BARBARIANS.

In turning from the nicely poised and elaborate provisions of the Imperial laws to the crude jurisprudence of the Barbarian hordes who gradually inherited the crumbling remains of the Empire of the West, we enter into social and political conditions so different that we are naturally led to expect a corresponding contrast in every detail of legislation. For the cringing suppliant of the audience chamber, abjectly prostrating himself before a monarch who combines in his own person every legislative and executive function, we have the freeman of the German forests, who sits in council with his chief, who frames the laws which both are bound to respect, and who pays to that chief only the amount of obedience which superior vigor and intellect may be able to enforce. The structure of such a society is fairly illustrated by the incident which Gregory of Tours selects to prove the kingly qualities of Clovis. During his conquest of Gaul, and before his conversion, his wild followers pillaged the churches with little ceremony. A bishop, whose cathedral had suffered largely, sent to the king to request that a certain vase of unusual size and beauty might be restored to him. Clovis could only promise that if the messenger would accompany him to Soissons, where the spoils were to be divided, and if the vase should chance to fall to his share, it should be restored. When the time came for allotting the plunder, he addressed his men, requesting as a special favor that the vase might be given to him before the division, but a sturdy soldier, brandishing his axe, dashed it against the coveted article, exclaiming, “Thou shalt take nothing but what the lot assigns to thee.” For a year, Clovis dissembled his resentment at this rebuff, but at length, when opportunity offered, he was prompt to gratify it. While reviewing and inspecting his troops, he took occasion to reproach bitterly the uncourtly Frank with the condition of his weapons, which he pronounced unserviceable. The battle-axe excited his especial displeasure. He threw it angrily to the ground, and as the owner stooped to pick it up, Clovis drove his own into the soldier’s head, with the remark, “It was thus you served the vase at Soissons.”[1456]

This personal independence of the freeman is one of the distinguishing characteristics of all the primitive Teutonic institutions. Corporal punishments for him were unknown to the laws. The principal resource for the repression of crime was by giving free scope to the vengeance of the injured party, and by providing fixed rates of composition by which he could be bought off. As the criminal could defend himself with the sword against the _faida_ or feud of his adversary, or could compound for his guilt with money, the suggestion of torturing him to extort a confession would seem an absurd violation of all his rights. Crimes were regarded solely as injuries to individuals, and the idea that society at large was interested in their discovery, punishment, and prevention, was entirely too abstract to have any influence on the legislation of so barbarous an age.

Accordingly, the codes of the Feini, the Ripuarians, the Alamanni, the Angli and Werini, the Frisians, the Saxons, and the Lombards contain no allusion to the employment of torture under any circumstances; and such few directions for its use as occur in the laws of the Salien Franks, of the Burgundians, and of the Baioarians, do not conflict with the general principle.

The personal inviolability which shielded the freeman cast no protection over the slave. He was merely a piece of property, and if he were suspected of a crime, the readiest and speediest way to convict him was naturally adopted. His denial could not be received as satisfactory, and the machinery of sacramental purgation or the judicial duel was not for him. If he were charged with a theft at home, his master would undoubtedly tie him up and flog him until he confessed, and if the offence were committed against a third party, the same process would necessarily be adopted by the court. Barbarian logic could arrive at no other mode of discovering and repressing crime among the friendless and unprotected, whose position seemed to absolve them from all moral responsibility.

The little that we know of the institutions of the ancient Gauls presents us with an illustration of the same principle developed in a somewhat different direction. Cæsar states that, when a man of rank died, his relatives assembled and investigated the circumstances of his death. If suspicion alighted upon his wives, they were tortured like slaves, and if found guilty they were executed with all the refinements of torment.[1457]

In accordance with this tendency of legislation, therefore, we find that among the Barbarians the legal regulations for the torture of slaves are intended to protect the interests of the owner alone. When a slave was accused of crime the master, indeed, could not refuse to hand him over to the torturer, unless he were willing to pay for him the full _wer-gild_ of a freeman, and if the slave confessed under the torture, the master had no claim for compensation arising either from the punishment or crippling of his bondman.[1458] When, however, the slave could not be forced to confess and was acquitted, the owner had a claim for damages, though no compensation was made to the unfortunate sufferer himself. The original law of the Burgundians, promulgated in 471, is the earliest of the Teutonic codes extant, and in that we find that the accuser who failed to extract a confession was obliged to give to the owner another slave, or to pay his value.[1459] The Baioarian law is equally careful of the rights of ownership, but seems in addition to attach some criminality to the excess of torture by the further provision that, if the slave die under the torment without confession, the prosecutor shall pay to the owner two slaves of like value, and if unable to do so, that he shall himself be delivered up as a slave.[1460] The Salic law, on the other hand, only guards the interests of the owner by limiting the torture to 120 blows with a rod of the thickness of the little finger. If this does not extort a confession, and the accuser is still unsatisfied, he can deposit with the owner the value of the slave, and then proceed to torture him at his own risk and pleasure.[1461]

It will be observed that all these regulations provide merely for extracting confessions from accused slaves, and not testimony from witnesses. Indeed, the system of evidence adopted by all the Barbarian laws for freemen was of so different a character, that no thought seems to have been entertained of procuring proof by the torture of witnesses. The only allusion, indeed, to such a possibility shows how utterly repugnant it was to the Barbarian modes of thought. In some MSS. of the Salic law there occurs the incidental remark that when a slave accused is under the torture, if his confession implicates his master, the charge is not to be believed.[1462]

Such was the primitive legislation of the Barbarians, but though in principle it was long retained, in practice it was speedily disregarded by those whom irresponsible power elevated above the law. The Roman populations of the conquered territories were universally allowed to live under their old institutions; in fact, law everywhere was personal and not territorial, every race and tribe, however intermingled on the same soil, being subjected to its own system of jurisprudence. The summary process of extracting confessions and testimony which the Roman practice thus daily brought under the notice of the Barbarians could not but be attractive to their violent and untutored passions. Their political system was too loose and undefined to maintain the freedom of the Sicambrian forests in the wealthy plains of Gaul, and the monarch, who, beyond the Rhine, had scarce been more than a military chief, speedily became a despot, whose power over those immediately around him was limited only by the fear of assassination, and over his more distant subjects by the facility of revolution.

When all thus was violence, and the law of the strongest was scarcely tempered by written codes, it is easy to imagine that the personal inviolability of the freeman speedily ceased to guarantee protection. Even amid the wild tribes which remained free from the corruptions of civilization the idea of torturing for confession the friendless and unprotected was not unfamiliar, and in the Elder Edda we find King Geirröd using the torment of fire for eight days on Odin, who visits him in disguise for the purpose of testing his hospitality.[1463] Among the Gallic Franks, therefore, it need not surprise us to see irresponsible power readily grasping at such means to gratify hate or ambition. In the long and deadly struggle between Fredegonda and Brunhilda, for example, the fierce passions of the adversaries led them to employ without scruple the most cruel tortures in the endeavor to fathom each other’s plots.[1464] A single case may be worth recounting to show how completely torture had become a matter of course as the first resource in the investigation of doubtful questions. When Leudastes, about the year 580, desired to ruin the pious Bishop Gregory of Tours, he accused him to Chilperic I. of slandering the fair fame of Queen Fredegonda, and suggested that full proof for condemnation could be had by torturing Plato and Gallienus, friends of the bishop. He evidently felt that nothing further was required to substantiate the charge, nor does Gregory himself, in narrating the affair, seem to think that there was anything irregular in the proposition. Gallienus and Plato were seized, but from some cause were discharged unhurt. Then a certain Riculfus, an accomplice of Leudastes, was reproached for his wickedness by a man named Modestus, whereupon he accused Modestus to Fredegonda, who promptly caused the unhappy wretch to be severely tortured without extracting any information from him, and he was imprisoned until released by the miraculous aid of St. Medard. Finally, Gregory cleared himself canonically of the imputation, and the tables were turned. Leudastes sought safety in flight. Riculfus was not so fortunate. Gregory begged his life, but could not save him from being tortured for confession. For six hours the wretched man was hung up with his hands tied behind his back, after which, stretched upon the rack, he was beaten with clubs, rods, and thongs, by as many as could get at him, until, as Gregory naïvely remarks, no piece of iron could have borne it. At last, when nearly dead, his resolution gave way, and he confessed the whole plot by which it had been proposed to get rid of Chilperic and Fredegonda, and to place Clovis on the throne.[1465] Now, Plato, Gallienus, and Modestus were probably of Gallo-Roman origin, but Riculfus was evidently of Teutonic stock; moreover, he was a priest, and Plato an archdeacon, and the whole transaction shows that Roman law and Frankish law were of little avail against the unbridled passions of the Merovingian.

## CHAPTER IV.

THE GOTHS AND SPAIN.

Of all the Barbarian tribes, none showed themselves so amenable to the influences of Roman civilization as the Goths. Their comparatively settled habits, their early conversion to Christianity, and their position as allies of the empire long before they became its conquerors, rendered them far less savage under Alaric than were the Franks in the time of Clovis. The permanent occupation of Septimania and Catalonia by the Wisigoths, also, took place at a period when Rome was not as yet utterly sunk, and when the power of her name still possessed something of its ancient influence, which could not but modify the institutions of the new-comers as they strove to adapt their primitive customs to the altered circumstances under which they found themselves. It is not to be wondered at, therefore, if their laws reflect a condition of higher civilization than those of kindred races, and if the Roman jurisprudence has left in them traces of the appreciation of that wonderful work of the human intellect which the Goths were sufficiently enlightened to entertain.

The Ostrogoths, allowing for the short duration of their nationality, were even more exposed to the influences of Rome. Their leader, Theodoric, had been educated in Constantinople, and was fully as much a Roman as many of the Barbarian soldiers who had risen to high station under the emperors, or even to the throne itself. All his efforts were directed to harmonizing the institutions of his different subjects, and he was too sagacious not to see the manifest superiority of the Roman polity.

His kingdom was too evanescent to consolidate and perfect its institutions or to accumulate any extended body of jurisprudence. What little exists, however, manifests a compromise between the spirit of the Barbarian tribes of the period and that of the conquered mistress of the world. The Edict of Theodoric does not allude to the torture of freemen, and it is probable that the free Ostrogoth could not legally be subjected to it. With respect to slaves, its provisions seem mainly borrowed from the Roman law. No slave could be tortured against a third party for evidence unless the informer or accuser was prepared to indemnify the owner at his own valuation of the slave. No slave could be tortured against his master, but the purchase of a slave to render his testimony illegal was pronounced null and void; the purchase money was returned, and the slave was tortured. The immunity of freedmen is likewise shown by the cancelling of any manumission conferred for the purpose of preventing torture for evidence.[1466] Theodoric, however, allowed his Roman subjects to be governed by their ancient laws, and he apparently had no repugnance to the use of torture when it could legally be inflicted. Thus he seems particularly anxious to ferret out and punish sorcerers, and in writing to the Prefect and Count of Rome he urges them to apprehend certain suspected parties, and try them by the regular legal process, which, as we have seen, by the edicts of Constantius and his successors, was particularly severe in enjoining torture in such cases, both as a means of investigation and of punishment.[1467]

On the other hand, the Wisigoths founded a permanent state, and as they were the only race whose use of torture was uninterrupted from the period of their settlement until modern times, and as their legislation on the subject was to a great extent a model for that of other nations, it may be worth while to examine it somewhat closely.

The earliest code of the Wisigoths is supposed to have been compiled by Eurik, in the middle of the fifth century, but it was subsequently much modified by recensions and additions. It was remoulded by Chindaswind and Recaswind about the middle of the seventh century, and it has reached us only in this latest condition, while the MSS. vary so much in assigning the authorship of the various laws that but little reliance can be placed upon the assumed dates of most of them. Chindaswind, moreover, in issuing his revised code, prohibited for the future the use of the Roman law, which had previously been in force among the subject populations, under codes specially prepared for them by order of Alaric II. Thus the Wisigothic laws, as we have them, are not laws of race, like the other Barbarian codes, but territorial laws carefully digested for a whole nation by men conversant alike with the Roman and with their own ancestral jurisprudence.

It is therefore not surprising to find in them the use of torture legalized somewhat after the fashion of the imperial constitutions, and yet with some humane modifications and restrictions. Slaves were liable to torture under accusation, but the accuser had first to make oath that he was actuated by neither fraud nor malice in preferring the charge; and he was further obliged to give security that he would deliver to the owner another slave of equal value if the accused were acquitted. If an innocent slave were crippled in the torture, the accuser was bound to give two of like value to the owner, and the sufferer received his freedom. If the accused died under the torture, the judge who had manifested so little feeling and discretion in permitting it was also fined in a slave of like value, making three enuring to the owner, and careful measures were prescribed to insure that a proper valuation was made. If the accuser was unable to meet the responsibility thus incurred, he was himself forfeited as a slave. Moreover, the owner was always at liberty to save his slave from the torture by proving his innocence otherwise if possible; and if he succeeded, the accuser forfeited to him a slave of equal value, and was obliged to pay all the costs of the proceedings.[1468]

Freedmen were even better protected. They could only be tortured for crimes of which the penalties exceeded a certain amount, varying with the nature of the freedom enjoyed by the accused. If no confession were extorted, and the accused were crippled in the torture, the judge and the accuser were both heavily fined for his benefit, and if he died, the fines were paid to his family.[1469]

There could have been little torturing of slaves as witnesses, for in general their evidence was not admissible, even under torture, against any freeman, including their masters. The slaves of the royal palace, however, could give testimony as though they were freemen,[1470] and, as in the Roman law, there were certain excepted crimes, such as treason, adultery, homicide, sorcery, and coining, in accusations of which slaves could be tortured against their masters, nor could they be preserved by manumission against this liability.[1471]

As regards freemen, the provisions of different portions of the code do not seem precisely in harmony, but all of them throw considerable difficulties in the way of procedures by torture. An early law directs that, in cases of theft or fraud, no one shall be subjected to torture unless the accuser bring forward the informer, or inscribe himself with three sureties to undergo the _lex talionis_ in case the accused prove innocent. Moreover, if no confession were extorted, the informer was to be produced. If the accuser could not do this, he was bound to name him to the judge, who was then to seize him, unless he were protected by some one too powerful for the judicial authority to control. In this event it was the duty of the judge to summon the authorities to his aid, and in default of so doing he was liable for all the damages arising from the case. The informer, when thus brought within control of the court, was, if a freeman, declared infamous, and obliged to pay ninefold the value of the matter in dispute; if a slave, sixfold, and to receive a hundred lashes. If the freeman were too poor to pay the fine, he was adjudged as a slave in common to the accuser and the accused.[1472]

A later law, issued by Chindaswind, is even more careful in its very curious provisions. No accuser could force to the torture a man higher in station or rank than himself. The only cases in which it could be inflicted on nobles were those of treason, homicide, and adultery, while for freemen of humbler position the crime must be rated at a fine of 500 solidi at least. In these cases, an open trial was first prescribed. If this were fruitless, the accuser who desired to push the matter bound himself in case of failure to deliver himself up as a slave to the accused, who could maltreat him at pleasure, short of taking his life, or compound with him at his own valuation of his sufferings. The torture then might last for three days; the accuser himself was the torturer, subject to the supervision of the judge, and might inflict torment to any extent that his ingenuity could suggest, short of producing permanent injury or death. If death resulted, the accuser was delivered to the relatives of the deceased to be likewise put to death; the judge who had permitted it through collusion or corruption was exposed to the same fate, but if he could swear that he had not been bribed by the accuser, he was allowed to escape with a fine of 500 solidi. A very remarkable regulation, moreover, provided against false confessions extorted by torment. The accuser was obliged to draw up his accusation in all its details, and submit it secretly to the judge. Any confession under torture which did not agree substantially with this was set aside, and neither convicted the accused nor released the accuser from the penalties to which he was liable.[1473]

Under such a system, strictly enforced, few persons would be found hardy enough to incur the dangers of subjecting an adversary to the rack. As with the Franks, however, so among the Wisigoths, the laws were not powerful enough to secure their own observance. The authority of the kings grew gradually weaker and less able to repress the assumptions of ambitious prelates and unruly grandees, and it is easy to imagine that in the continual struggle all parties sought to maintain and strengthen their position by an habitual disregard of law. At the Thirteenth Council of Toledo, in 683, King Erwig, in his opening address, alludes to the frequent abuse of torture in contravention of the law, and promises a reform. The council, in turn, deplores the constantly recurring cases of wrong and suffering wrought “regiæ subtilitatis astu vel profanæ potestatis instinctu,” and proceeds to decree that in future no freeman, noble, or priest shall be tortured unless regularly accused or indicted, and properly tried in public; and this decree duly received the royal confirmation.[1474]

As the Goths emerge again into the light of history after the Saracenic conquest, we find these ancient laws still in force among the descendants of the refugees who had gathered around Don Pelayo. The use of the Latin tongue gradually faded out among them, and about the twelfth or thirteenth century the Wisigothic code was translated into the popular language, and this Romance version, known as the _Fuero Juzgo_, long continued the source of law in the Peninsula. In this, the provisions of the early Gothic monarchs respecting torture are textually preserved, with two trifling exceptions, which may reasonably be regarded as scarcely more than mere errors of copyists.[1475] Torture was thus maintained in Spain as an unbroken ancestral custom, and the earliest reference which I have met with of it in mediæval jurisprudence occurs in 1228, when Don Jayme el Conquistador of Aragon forbade his representatives from commencing proceedings by its employment without special orders.[1476] When Alfonso the Wise, about the middle of the thirteenth century, attempted to revise the jurisprudence of his dominions, in the code known as _Las Siete Partidas_, which he promulgated, he only simplified and modified the proceedings, and did not remove the practice. Although he proclaimed that the person of man is the noblest thing of earth—“La persona del home es la mas noble cosa del mundo”[1477]—he held that stripes and other torture inflicted judicially were no dishonor even to Spanish sensitiveness.[1478] Asserting that torture was frequently requisite for the discovery of hidden crimes,[1479] he found himself confronted by the Church, which taught, as we shall see hereafter, that confessions extorted under torture were invalid. To this doctrine he gave his full assent,[1480] and then, to reconcile these apparently incompatible necessities, he adopted an expedient partially suggested not long before by Frederic II., which subsequently became almost universal throughout Europe, whereby the prohibition of conviction on extorted confessions was eluded. After confession under torture, the prisoner was remanded to his prison. On being subsequently brought before the judge he was again interrogated, when, if he persisted in his confession, he was condemned. If he recanted, he was again tortured; and, if the crime was grave, the process could be repeated a third time; but, throughout all, he could not be convicted unless he made a free confession apart from the torture. Even after conviction, moreover, if the judge found reason to believe that the confession was the result of fear of the torture, or of rage at being tortured, or of insanity, the prisoner was entitled to an acquittal.[1481] The humane interference of the Church thus resulted only in a redoublement of cruelty; and the system once introduced, speedily tended to break down the limits imposed on it. In a little more than half a century after the death of Alfonso, judges were in the habit of not contenting themselves with three inflictions, but continued the torture as long as the prisoner confessed on the rack and retracted his confession subsequently.[1482]

Alfonso’s admiration of the Roman law led him to borrow much from it rather than from the Gothic code, though both are represented in the provisions which he established. Thus, except in accusations of treason, no one of noble blood could be tortured, nor a doctor of laws or other learning, nor a member of the king’s council, or that of any city or town, except for official forgery, nor a pregnant woman, nor a child under fourteen years of age.[1483] So, when several accomplices were on trial, the torturer was directed to commence with the youngest and worst trained, as the truth might probably be more readily extracted from him.[1484] The provision, also, that when a master, or mistress, or one of their children was found dead at home, all the household slaves were liable to torture in the search for the murderer, bears a strong resemblance to the cruel law of the Romans, which condemned them to death in case the murderer remained undiscovered.[1485]

The regulations concerning the torture of slaves are founded, with little variation, on the Roman laws. Thus, the evidence of a slave was only admissible under torture, and no slave could be tortured to prove the guilt of a present or former owner, nor could a freedman, in a case concerning his patron, subject to the usual exceptions which we have already seen. The excepted crimes enumerated by Alfonso are seven, viz.: adultery, embezzlement of the royal revenues by tax collectors, high treason, murder of a husband or wife by the other, murder of a joint owner of a slave by his partner, murder of a testator by a legatee, and coining. With the slave, as with the freeman, all testimony under torture required subsequent confirmation.[1486]

There is one noteworthy innovation, however, in the Partidas which was subsequently introduced widely into the torture codes of Europe, and which, in theory at least, greatly extended their sphere of action. This was the liability of freemen as witnesses. When a man’s evidence was vacillating and contradictory, so as to afford reasonable suspicion that he was committing perjury, all criminal judges were empowered to subject him to torture, so as to ascertain the truth, provided always that he was of low condition, and did not belong to the excepted classes.[1487]

With all this, there are indications that Alfonso designed rather to restrict than to extend the use of torture, and, if his general instructions could have been enforced, there must have been little occasion for its employment under his code. In one passage he directs that when the evidence is insufficient to prove a charge, the accused, if of good character, must be acquitted; and in another he orders its application only when common report is adverse to a prisoner, and he is shown to be a man of bad repute.[1488] Besides, an accuser who failed to prove his charge was always liable to the _lex talionis_, unless he were prosecuting for an offence committed on his own person, or for the murder of a relative not more distant than a brother or sister’s child.[1489] The judge, moreover, was strictly enjoined not to exceed the strict rules of the law, nor to carry the torture to a point imperilling life or limb. If he deviated from these limits, or acted through malice or favoritism, he was liable to a similar infliction on his own person, or to a penalty greater than if he were a private individual.[1490] The liability of witnesses was further circumscribed by the fact that in cases involving corporal punishment, no one could be forced to bear testimony who was related to either of the parties as far as the fourth degree of consanguinity, in either the direct or collateral lines, nor even when nearly connected by marriage, as in the case of fathers-in-law, step-children, etc.[1491] Orders to inflict torture, moreover, were one of the few procedures which could be appealed from in advance.[1492] Several of these limitations became generally adopted through Europe. We shall see, however, that they afforded little real protection to the accused, and it is more than probable that they received as little respect in Spain as elsewhere.

There were many varieties of torture in use at the period, but Alfonso informs us that only two were commonly employed, the scourge and the strappado, which consisted in hanging the prisoner by the arms while his back and legs were loaded with heavy weights.[1493] The former of these, however, seems to be the only one alluded to throughout the code.

As a whole, the Partidas were too elaborate and too much in advance of the wants of the age to be immediately successful as a work of legislation, and they were not confirmed by the Córtes until 1348. In the Ordenamiento de Alcalà of Alfonso XI., issued in-that year, they are referred to as supplying all omissions in subsequent codes.[1494]

It is probable that in his system of torture Alfonso the Wise merely regulated and put into shape the customs prevalent in his territories, for the changes in it which occurred during the succeeding three or four centuries are merely such as can be readily explained by the increasing influence of the revived Roman jurisprudence, and the introduction of the doctrines of the Inquisition with respect to criminal procedures. In the final shape which the administration of torture assumed in Castile, as described by Villadiego, an eminent legist writing about the year 1600, it was only employed when the proof was strong, and yet not sufficient for conviction. No allusion is made to the torture of witnesses, and Villadiego condemns the cruelty of some judges who divide the torture into three days in order to render it more effective, since, after a certain prolongation of torment, the limbs begin to lose their sensibility, which is recovered after an interval, and on the second and third days they are more sensitive than at first. This he pronounces rather a repetition than a continuation of torture, and repetition was illegal unless rendered necessary by the introduction of new testimony.[1495] As in the thirteenth century, nobles, doctors of law, pregnant women, and children under fourteen were not liable, except in cases of high treason and some other heinous offences. The clergy also were now exempted, unless previously condemned as infamous, and advocates engaged in pleading enjoyed a similar privilege. With the growth of the Inquisition, however, heresy had now advanced to the dignity of a crime which extinguished all prerogatives, for it was held to be a far more serious offence to be false to Divine than to human majesty.[1496] The Partidas allow torture in the investigation of comparatively trivial offences, but Villadiego states that it should be employed only in the case of serious crimes, entailing bodily punishment more severe than the torture itself, and torture was worse than the loss of the hands. Thus, when only banishment, fines, or imprisonment were involved, it could not be used. The penalties incurred by judges for its excessive or improper application were almost identical with those prescribed by Alfonso, and the limitation that it should not be allowed to endanger life or limb was only to be exceeded in the case of treason, when the utmost severity was permissible.[1497] In 1489 Ferdinand and Isabella had directed that no criminal case should be heard by less than three alcaldes or judges sitting together, and torture could not be employed without a formal decision signed unanimously by all three. In 1534 Charles V. called attention to the neglect of this rule, whereby the accused was deprived of the right of appeal, and he ordered that it should be strictly observed in future—regulations which duly maintained their place on the statute book as long as the use of torture was continued.[1498]

Many varieties were in use, but the most common were the strappado and pouring water down the throat; but when the accused was so weak as to render these dangerous, fire was applied to the soles of the feet; and the use of the scourge was not unusual. As in the ancient laws, the owner of slaves was entitled to compensation when his bondmen were unjustly tortured. If there was no justification for it, he was reimbursed in double the estimated value; if the judge exceeded the proper measure of torment, he made it good to the owner with another slave.[1499]

Whatever limitations may theoretically have been assigned to the application of torture, however, it is probable that they received little respect in practice. Simancas, Bishop of Badajos, who was a little anterior to Villadiego, speaks of it as a generally received axiom that scarcely any criminal accusation could be satisfactorily tried without torture.[1500] This is confirmed by the account recently discovered by Bergenroth of the secret history of the execution of Don Carlos, for, whether it be authentic or not, it shows how thoroughly the use of torture had interpenetrated the judicial system of Spain. It states that when Philip II. determined to try his wretched son for the crime of encouraging the rebellious movements in the Netherlands, and the prince denied the offence, torture was applied until he fainted, and, on recovering his senses, consented to confess in order to escape the repetition which was about to be applied. It is hardly to be believed that even a Spanish imagination could invent the dark and terrible details of this dismal story; and even if it be not true, its author must have felt that such an incident was too probable to destroy its vraisemblance.

At the same time, Castilian justice kept itself free from one of the worst abuses which, as we shall see hereafter, grew out of the use of torture, in the secret inquisitorial process which established itself almost everywhere. A law of Alfonso XI. issued in 1325 peremptorily ordered that the accused should not be denied the right to know the contents of the inquest made with respect to him, and that the names of the witnesses should be communicated to him so that he could defend himself freely and have all the means to which he was entitled of establishing his innocence. Ferdinand and Isabella, moreover, in 1480, decreed that all who desired counsel should be allowed the privilege, those who were poor being furnished at the public expense, and no torture could be inflicted before this was complied with. These laws, which offer so creditable a contrast to the legislation of other lands, remained in force and were embodied in the Recopilacion.[1501]

## CHAPTER V.

CARLOVINGIAN AND FEUDAL LAW.

In turning to the other barbarian races which inherited the fragments of the Roman empire, we find that the introduction of torture as a recognized and legal mode of investigation was long delayed. Under the Merovingians, as we have seen, its employment, though not infrequent, was exceptional and without warrant of law. When the slow reconstruction of society at length began, the first faint trace of torture is to be found in a provision respecting the crimes of sorcery and magic. These were looked upon with peculiar detestation, as offences against both God and man. It is no wonder then if the safeguards which the freeman enjoyed under the ordinary modes of judicial procedure were disregarded in the cases of those who violated every law, human and divine. The legislation of Charlemagne, indeed, was by no means merciful in its general character. His mission was to civilize, if possible, the savage and turbulent races composing his empire, and he was not overnice in the methods selected to accomplish the task. Still, he did not venture, even if he desired, to prescribe torture as a means of investigation, except in the case of suspected sorcerers, for whom, moreover, it is ordered indirectly rather than openly.[1502] Yet, by this time, the personal inviolability of the freeman was gone. The infliction of stripes and of hideous mutilations is frequently directed in the Capitularies, and even torture and banishment for life are prescribed as a punishment for insulting bishops and priests in church.[1503]

This apparent inconsistency is only a repetition of what we have seen in the Persian and Indian institutions, where torture was superfluous in the presence of other forms of proof, and in Greece and Rome where it makes its appearance in the absence of those forms. Though there was no theoretical objection to torture as a process of investigation, yet there was no necessity for its employment as a means of evidence. That the idea of thus using it in matters of great moment was not unfamiliar to the men of that age is evident when we find it officially stated that the accomplices of Bernard, King of Italy, in his rebellion against Louis le Débonnaire, in 817, on their capture confessed the whole plot without being put to the torture.[1504] Such instances, however, were purely exceptional. In ordinary matters, there was a complete system of attack and defence which supplemented all deficiencies of testimony in doubtful cases. Sacramental purgation, the wager of battle, and the various forms of vulgar ordeals were not only primæval customs suited to the feelings and modes of thought of the race, but they were also much more in harmony with the credulous faith inculcated by the Church, and the Church had by this time entered on the career of temporal supremacy which gave it so potent a voice in fashioning the institutions of European society. For all these, the ministrations of the ecclesiastic were requisite, and in many of them his unseen agency might prove decisive. On the other hand, the humane precepts which forbade the churchman from intervening in any manner in judgments involving blood precluded his interference with the torture chamber; and in fact, while torture was yet frequent under the Merovingians, the canons of various councils prohibited the presence of any ecclesiastic in places where it was administered.[1505] Every consideration, therefore, would lead the Church in the ninth century to prefer the milder forms of investigation, and to use its all-powerful influence in maintaining the popular belief in them. The time had not yet come when, as we shall see hereafter, the Church, as the spiritual head of feudal Christendom, would find the ordeal unnecessary and torture the most practicable instrumentality to preserve the purity of faith and the steadfastness of implicit obedience.

In the ninth century, moreover, torture was incompatible with the forms of judicial procedure handed down as relics of the time when every freeman bore his share in the public business of his sept. Criminal proceedings as yet were open and public. The secret inquisitions which afterwards became so favorite a system with lawyers did not then exist. The _mallum_, or court, was perhaps no longer held in the open air,[1506] nor were the freemen of the district constrained as of old to be present,[1507] but it was still free to every one. The accuser and his witnesses were confronted with the accused, and the criminal must be present when his sentence was pronounced.[1508] The purgatorial oath was administered at the altar of the parish church; the ordeal was a public spectacle; and the judicial duel drew thousands of witnesses as eager for the sight of blood as the Roman plebs. These were all ancestral customs, inspiring implicit reverence, and forming part of the public life of the community. To substitute for them the gloomy dungeon through whose walls no echo of the victim’s screams could filter, where impassible judges coldly compared the incoherent confession wrung out by insufferable torment with the anonymous accusation or the depositions of secret witnesses, required a total change in the constitution of society.

The change was long in coming. Feudalism arose and consolidated its forces on the ruins of the Carlovingian empire without altering the principles upon which the earlier procedures of criminal jurisdiction had been based. As the local dignitaries seized upon their fiefs and made them hereditary, so they arrogated to themselves the dispensation of justice which had formerly belonged to the central power, but their courts were still open to all. Trials were conducted in public upon well-known rules of local law and custom; the fullest opportunities were given for the defence; and a denial of justice authorized the vassal to renounce the jurisdiction of his feudal lord and seek a superior court.[1509]

Still, as under the Merovingians, torture, though unrecognized by law, was occasionally employed as an extraordinary element of judicial investigation, as well as a means of punishment to gratify the vengeance of the irresponsible and cruel tyrants who ruled with absolute sway over their petty lordships. A few such instances occur in the documents and chronicles of the period, but the terms in which they are alluded to show that they were regarded as irregular.

Thus, it is related of Wenceslas, Duke of Bohemia, in the early part of the tenth century, that he destroyed the gibbets and fearful instruments of torture wherewith the cruelty of his judges had been exercised, and that he never allowed them to be restored.[1510] An individual case of torture which occurred in 1017 has chanced to be preserved to us by its ending in a miracle, and being the occasion of the canonization of a saint. A pious pilgrim, reputed to belong to the royal blood of Scotland, while wandering on the marches between the Bavarians and the Moravians, was seized by the inhabitants on suspicion of being a spy, and, to extort a confession, was exposed to a succession of torments which ended in hanging him on a withered tree until he died. The falsity of the accusation and the sanctity of the victim were manifested by the uninterrupted growth of his hair and nails and the constant flowing of blood from a wound, while the dead tree suddenly put forth leaves and flowers. Margrave Henry of Bavaria had him reverently buried, and he was duly enrolled in the catalogue of saints.[1511] A letter of Gerard, Bishop of Cambrai, in 1025, relating how certain suspected heretics could not be forced by torment to confession, shows that ecclesiastics already were prepared, in spite of the received dogmas of the Church, to have recourse to such means when no others could be found to protect the purity of the faith.[1512] In the celebrated case, also, of the robbery of the church of Laon, about the year 1100, the suspected thief, after conviction by the cold water ordeal, was tortured by command of the bishop in order to make him surrender the sacred vessels which he had concealed. Basting with hot lard was tried unsuccessfully; he was then hanged by the neck and let down at intervals for nearly a whole day, and when life was almost extinct his resolution gave way and he agreed to discover the place where the valuables were hidden.[1513] When Charles the Good of Flanders was murdered in 1127, one of the assassins fled to Terouane, where he was discovered and forced by scourging to disclose the names of his accomplices.[1514] About 1130 at Petersberg, in Saxony, we are told of a shepherd tortured by his lord to extract money, and saved from suffering by an earnest prayer to St. Peter.[1515] When Richard I. of England was endeavoring to return through Germany from the crusade, it was by the torture of his page that the identity of the royal traveller was discovered, and he was delivered to his enemy the Duke of Austria.[1516]

These are evidently rather sporadic and exceptional cases than indications of any systematic introduction of the practice. A more significant allusion, however, is found in the reproof administered, about 1125, by Hildebert, Bishop of le Mans, to one of his priests, who had been concerned in the torture of a suspected thief, for the purpose of extracting a confession. Hildebert argues that the infliction of torture for confession is a matter for judicial decision and not of Church discipline, and therefore not fit for a clerk to be engaged in.[1517] This would seem to show that it occasionally was a recognized means of proof in the lay tribunals of the period, though as yet not favored by the Church. If so, no record of its introduction or evidence of its customary use has been preserved to us, though there is abundant evidence of its employment as a punishment and for the extortion of money.

As a punishment legally inflicted, we find it prescribed, in 1168, by Frederic Barbarossa in cases of petty thefts,[1518] and in the next century by Frederic II. as a penalty for high treason.[1519] Special cases, too, may be instanced, where its infliction on a large scale shows that the minds of men were not unfamiliar with its use. Thus when, in 1125, the inhabitants of Erfurt were guilty of some outrages on the imperial authority, and the town was besieged and captured by the Emperor Lothair, the chronicler relates that large numbers of the citizens were either killed, blinded, or tortured in various ways by the vindictive conqueror,[1520] and in 1129 he treated the citizens of Halle in the same manner.[1521]

Even towards the close of the thirteenth century, we find Rodolph of Hapsburg interfering in favor of a prisoner whom one of his nobles was afflicting with cruel torments. The Emperor, however, does not venture to command, but merely entreats that the tortures be suspended until he shall have an interview with the aggressor.[1522]

So summary and effective a mode of forcing the weak and unprotected to ransom themselves was not likely to be overlooked in those ages of violence, and though the extra-judicial use of torture is foreign to our purpose, yet, as showing how men educated themselves in its employment, it may be worth while to allude briefly to this aspect of the subject. Thus, Duke Swantopluck of Bohemia, in a marauding expedition into Hungary in 1108, caused to be racked or put to death all prisoners who could not purchase escape by heavy ransoms.[1523] At the same period, Germany is described to us by an eye-witness as covered with feudal chieftains who lived a life of luxury by torturing the miserable wretches that could scarce obtain bread and water for their own existence.[1524] In Spain, the same means were understood and employed by the savage nobles of that barbarous period.[1525] In England, the fearful anarchy which prevailed under King Stephen encouraged a similar condition of affairs. The baronial castles which then multiplied so rapidly became mere dens of robbers who ransacked the country for all who had the unfortunate reputation of wealth. From these they extracted the last penny by tortures; and the chronicler expatiates on the multiplicity and horrid ingenuity of the torments devised—suspension by the feet over slow fires; hanging by the thumbs; knotted ropes twisted around the head; crucet-houses, or chests filled with sharp stones, in which the victim was crushed; sachentages, or frames with a sharp iron collar preventing the wearer from sitting, lying, or sleeping; dungeons filled with toads and adders; slow starvation, &c. &c.[1526] Even in the more settled times of the close of the reign of Henry II. a case is recorded of a heavy fine inflicted on a man for illegally capturing and torturing a woman;[1527] under Richard I. an epistle of Clement III. refers to a knight who had confessed that he had tortured a priest and forced him to redeem himself with a large sum of money;[1528] and in 1210 King John seized all the Jews in England and tortured them until they ransomed themselves heavily.[1529]

In all this, however, there is no evidence of the revival of torture as a means of legal investigation. The community was satisfied with the old barbaric forms of trial, and the Church, still true to its humanizing instincts, lost no opportunity of placing the seal of its disapprobation on the whole theory of extorting confessions. At an early period, it had even been a matter of dispute whether a Christian magistrate, after baptism, was at liberty to inflict torment and pronounce sentence of death. The Synod of Rome in 384 had declared that no Christian could exercise secular power without sin, because he was obliged to contravene the teachings of the Church by ordering the application of torture in judicial pleadings;[1530] and if Innocent I., in 405, had decided that such proceedings were lawful, it was only on the ground that the Church had no right to resist the laws or to oppose the powers ordained of God.[1531] About the same time St. Augustin had exposed the cruel absurdity of torture with a cogent terseness that has rarely been excelled, and had stamped it with the infamy which it deserved.[1532] The great name of Gregory I. was on record in the sixth century, denouncing as worthless a confession extorted by incarceration and hunger.[1533] When Nicholas I., who did so much to build up ecclesiastical power and influence, addressed, in 866, his well-known epistle to the Bulgarians to aid and direct them in their conversion to orthodoxy, he recites that he is told that, in cases of suspected theft, their courts endeavor to extort confession by stripes, and by pricking with a pointed iron. This he pronounces to be contrary to all law, human and divine, for confessions to be valid should be spontaneous; and he argues at some length on the uncertainty of the system of torture, and the injustice to which it leads, concluding with a peremptory prohibition of its continuance.[1534]

In the first half of the same century, the manufacturers of the False Decretals had attributed to Alexander I. an epistle designed to protect the Church from pillage and oppression, in which that pontiff is made to threaten with infamy and excommunication those who extort confessions or other writings from ecclesiastics by force or fear, and to lay down the general rule that confessions must be voluntary and not compulsory.[1535] On the authority of this, Ivo of Chartres, at the commencement of the twelfth century, declares that men in holy orders cannot be forced to confess;[1536] and half a century later, Gratian lays down the more general as well as more explicit rule that no confession is to be extorted by the instrumentality of torture.[1537] This position was consistently maintained until the revival of the Roman law familiarized the minds of men with the procedures of the imperial jurisprudence, when the policy of the Church altered, and it yielded to the temptation of obtaining so useful a means of reaching and proving the otherwise impalpable crime of heresy.

## CHAPTER VI.

REAPPEARANCE OF TORTURE.

The latter half of the twelfth century saw the study of the civil law prosecuted with intense ardor, and, in the beginning of the thirteenth, Innocent III. struck a fatal blow at the barbaric systems of the ordeal and sacramental compurgation by forbidding the rites of the Church to the one and altering the form of oath customary to the other. The unreasoning faith which had reposed confidence in the boiling caldron, or the burning ploughshare, or the trained champion as the special vehicle of Divine judgment, was fading before the Aristotelian logic of the schools, and dialectical skill could not but note the absurdity of acquitting a culprit because he could beg or buy two, or five, or eleven men to swear to their belief in his oath or denial.

Yet with all these influences at work, the ancestral customs maintained their ground long and stubbornly. It is not until the latter half of the thirteenth century that the first faint traces of legalized torture are to be found in France, at whose University of Paris for more than a hundred years the study of the Pandects had become the absorbing topic, and where the constantly increasing power of the crown found its most valuable instruments in the civil lawyers, and its surest weapon against feudalism in the extension of the royal jurisdiction. In Germany, the progress was even slower. The decline of the central authority, after the death of Frederic Barbarossa, rendered any general change impossible, and made the absolutist principles of the imperial jurisprudence especially distasteful to the crowd of feudal sovereigns, whose privileges were best supported by perpetuating organized anarchy. The early codes, therefore, the Sachsenspiegel, the Schwabenspiegel, the Kayser-Recht, and the Richstich Landrecht, which embodied the judicial proceedings of the Teutonic nations from the thirteenth to the fifteenth centuries, seem to know no other mode of deciding doubtful questions than sacramental purgation and the various forms of ordeal. During the latter portion of this period, it is true, torture begins to appear, but it is an innovation.[1538]

The first indications of the modern use of torture show distinctly that its origin is derived from the civil law. In the Latin Kingdoms of the East, the Teutonic races were brought into contact with the remains of the old civilization, impressive even in its decrepitude. It was natural that, in governing the motley collection of Greeks, Syrians, and Franks, for whom they had to legislate, they should adopt some of the institutions which they found in force amid their new possessions, and it is only surprising that torture did not form a more prominent feature in their code. The earliest extant text of the _Assises de Jerusalem_ is not older than the thirteenth century, and the blundering and hesitating way in which it recognizes, in a single instance, the use of torture shows how novel was the idea of such procedure to the feudal barons, and how little they understood the principles governing its application. When a murderer was caught in the act by two witnesses, he could be promptly hanged on their testimony, if they were strangers to the victim. If, however, they were relatives, their testimony was held suspect, and the confession of the accused was requisite to his conviction. To obtain this, he was subjected to torture for three days; if he confessed, he was hanged; if obdurate, he was imprisoned for a year and a day, with the privilege of clearing himself during that period by the ordeal of the red-hot iron. If he declined this, and if during his confinement no additional evidence was procured, he was acquitted, and could not be again appealed for the murder.[1539]

This show’s the transition state of the question. The criminal is caught with the red hand and the evidence of guilt is complete, save that the witnesses may be interested; confession thus becomes requisite, yet the failure to extort it by prolonged torment does not clear the accused; the ordeal is resorted to in order to supplement the torture, and solve the doubts which the latter could not remove; and finally, the criminal is absolved, though he dare not trust the judgment of God, and though the uncertainties in which torture had left the case are not removed.

Italy was the centre from which radiated the influences of the Roman law throughout Western Europe, and, as might be expected, it is to Italy that we must look for the earliest incorporation of torture in the procedures of modern criminal jurisprudence. The Veronese laws in force in 1228 already show a mixture of proceedings suggestive, like the Assises de Jerusalem, of the impending change. In doubtful cases, the podestà was empowered to ascertain the truth of testimony by either inquest, torture, or the duel.[1540] This shows that the employment of torture was by this time recognized to some extent, though as the code is a very full one and this is the only allusion to it, it evidently had not yet grown into one of the regular legal processes. So in the legislation of Frederic II. for his Neapolitan provinces, promulgated in 1231, the mode in which it is prescribed shows that it was as yet but sparingly employed. As Frederic was one of the earliest secular legislators who discountenanced and restricted the various forms of the ordeal, it was natural that, with his education and temperament, he should seek to replace them with the system of the Roman codes which he so much admired.

When a secret murder or other heinous crime was committed, and the most stringent investigation could not convict the perpetrators, if the weight of suspicion fell on persons of humble station and little consequence, they could be tortured for confession. If no torment could wring from them an acknowledgment of guilt, or if, as often happened (“prout accidere novimus in plerisque”), their resolution gave way under insufferable torment and they subsequently recanted, then the punishment, in the shape of a fine, was inflicted on the district where the crime had occurred.[1541] From this it is evident that torture was not exactly a novelty, but that as yet it was only ventured upon with the lowest and most unprotected class of society, and that confession during its infliction was not regarded as sufficient for conviction, unless subsequently ratified.

During the remainder of the century, the statutes of many of the Italian cities show the gradual introduction of torture to replace the barbarian processes which were not indigenous,[1542] and which the traditional hate of the Italian States for the Tedeschi was not likely to render popular. That by the middle of the century, indeed, the practical applications of torture had been profoundly studied and were thoroughly understood in all their most inhuman ramifications is sufficiently evident from the accounts which we possess of the fearful cruelties habitually practised by petty despots such as Eccelino da Romano.[1543]

The manner in which the use of torture thus in time was superimposed upon the existing customs of Europe is clearly shown in the law of Lubeck. The mercantile law of the Middle Ages disregarded, as we have seen, all the irregular forms of evidence, such as the ordeal, the judicial duel, &c., and it naturally was not favorable to torture. As the chief of the Hanse-towns Lubeck, therefore, in its legislation preserved the principles of the mercantile law, but in time these came to be expounded by a race of lawyers imbued with the ideas of the imperial jurisprudence, and little was left of the primitive simplicity of the original code. Thus the latter, when treating of adultery, simply provides that the accused must clear himself by oath, or be held guilty of the charge; but a commentary on it, written in 1664, assumes that as the crime is a peculiarly secret one recourse must be at once had to torture where there is colorable ground for suspicion.[1544]

About this time we also find, in the increasing rigor and gradual systematizing of the Inquisition, an evidence of the growing disposition to resort to torture, and a powerful element in extending and facilitating its introduction. The Church had been actively engaged in discountenancing and extirpating the ordeal, and it now threw the immense weight of its authority in favor of the new process of extorting confessions. When Frederic II., from 1220 to 1239, published his three constitutions directed against heresy, cruel and unsparing as they were, they contained no indication that torture was even contemplated as a mode of investigation. In conformity with the provisions of the Lateran Council of 1215, parties suspected on insufficient evidence were directed to prove their innocence by some fitting mode of purgation, and the same instructions were given by Gregory IX. in 1235.[1545] In 1252, however, when Innocent IV. issued his elaborate directions for the guidance of the Inquisition in Tuscany and Lombardy, he ordered the civil magistrates to extort from all heretics by torture not merely a confession of their own guilt, but an accusation of all who might be their accomplices; and this derives additional significance from his reference to similar proceedings as customary in trials of thieves and robbers.[1546] It shows the progress made during the quarter of the century and the high appreciation entertained by the Church for the convenience of the new system.

At first the canons of the Church, which prohibited ecclesiastics from being concerned in such matters, or even from being present, under pain of “irregularity,” rendered it necessary for inquisitors to call in the secular executioners; but this interfered with promptness and secrecy, and the difficulty was removed with characteristic indirection. A series of papal bulls from 1256 to 1266 authorized inquisitors and their assistants to grant mutual absolution and dispensation for irregularities,[1547] and thus they were able to take the business of inflicting torture into their own hands—an opportunity of which they availed themselves fully.

As yet, however, this did not extend beyond Italy. There is extant a tract, written not long after this time, containing very minute instructions as to the established mode of dealing with the Waldensian sectaries known as the “Poor Men of Lyons.” It gives directions to break down their strength and overcome their fortitude by solitary confinement, starvation, and terror, but it abstains from recommending the infliction of absolute and direct torture, while its details are so full that the omission is fair negative evidence that such measures were not then customary.[1548]

The whole system of the Inquisition, however, was such as to render the resort to torture inevitable. Its proceedings were secret; the prisoner was carefully kept in ignorance of the exact charges against him, and of the evidence upon which they were based. He was presumed to be guilty, and his judges bent all their energies to force him to confess. To accomplish this, no means were too base or too cruel. According to the tract just quoted, pretended sympathizers were to be let into his dungeon, whose affected friendship might entrap him into an unwary admission; officials armed with fictitious evidence were directed to frighten him with assertions of the testimony obtained against him from supposititious witnesses; and no resources of fraud or guile were to be spared in overcoming the caution and resolution of the poor wretch whose mind, as we have seen, had been carefully weakened by solitude, suffering, hunger, and terror. From this to the rack and estrapade the step was easily taken, and was not long delayed. In 1301, we find even Philippe le Bel protesting against the cruelty of Fulk, the Dominican Inquisitor, and interfering to protect his subjects from the refinements of torture to which, on simple suspicion of heresy, unfortunate victims were habitually exposed.[1549] Yet when, a few years later, the same monarch resolved upon the destruction of the Templars, he made the Inquisition the facile instrument to which he resorted, as a matter of course, to extort from De Molay and his knights, with endless repetition of torments, the confessions from which he hoped to recruit his exhausted treasury with their broad lands and accumulated riches.[1550]

The history of the Inquisition, however, is too large a subject to be treated here in detail, and it can only be alluded to for the purpose of indicating its influence upon secular law. That influence was immense. The legists who were endeavoring to eradicate the feudal customs could not expect the community to share their admiration of the Roman law, and naturally grasped with eagerness the advantage offered them in adducing the example of ecclesiastical institutions. In founding their new system they could thus hardly avoid copying that which presented itself under all the authority of an infallible Church, and which had been found to work so successfully in unveiling the most secret of hidden crimes, those of faith and belief.[1551] When, therefore, men were taught that in these cases the ordinary forms and safeguards of the law were not to stand in the way of the public good, a principle was enunciated capable of illimitable development.

About the time when Innocent IV. was prescribing torture in Italy, we find the first evidence of its authoritative use in France as an ordinary legal procedure. In December, 1254, an assembly of the nobles of the realm at Paris adopted an ordonnance regulating many points in the administration of justice. Among these occurs an order that persons of good reputation, even though poor, shall not be put to the torture on the evidence of one witness, lest, on the one hand, they may be forced to convict themselves falsely, or, on the other, to buy themselves off from the infliction.[1552]

This would seem to indicate that the system of judicial torture was so completely established that its evils and abuses had begun to render themselves apparent and to require restrictive legislation. Yet the contemporaneous remains of jurisprudence show no trace of the custom, and some of them are of a nature to render their silence a negative proof of no little weight. To this period, for instance, belongs the earliest extant coutumier of Normandy, published by Ludewig, and it contains no allusion to torture. The same may be said of the _For de Béarn_, granted in 1288, and recently printed by MM. Mazure and Hatoulet, which is very full in its details of judicial procedure. The collection of the laws of St. Louis, known as the _Établissements_, is likewise free from any instructions or directions as to its application, though it could scarcely have been omitted had it formed part of the admitted jurisprudence of the age. It may be argued, indeed, that these codes and laws assume the existence of torture, and therefore make no reference to it, but such an argument would not hold good with respect to the books of practice which shrewd and experienced lawyers commenced at that time to draw up for the guidance of courts in the unsettled period of conflict between the ancient feudal customs and the invading civil law. For instance, no text-book can well be more minute than the _Livres de Jostice et de Plet_, written about the year 1260, by a lawyer of the school of Orleans, then celebrated as the headquarters of the study of the imperial jurisprudence. He manifests upon almost every page his familiar acquaintance with the civil and canon law, and he could not possibly have avoided some reference to torture if it had been even an occasional resource in the tribunals in which he pleaded, and yet he does not in any way allude to it.

The same conclusion is derivable from the _Coutumes du Beauvoisis_, written about 1270 by Philippe de Beaumanoir. In his position as royal bailli, Beaumanoir had obtained the fullest possible familiarity with all the practical secular jurisprudence of his day, and his tendencies were naturally in favor of the new system with which St. Louis was endeavoring to break down the feudal customs. Yet, while he details at much length every step in all the cases, civil and criminal, that could be brought into Court, he makes no allusion to torture as a means of obtaining evidence. In one passage, it is true, he seems to indicate that a prisoner could be forced, while in prison, to criminate himself, but the terms employed prove clearly that this was not intended to include the administration of torment.[1553] In another place, moreover, when treating of robberies, he directs that all suspected parties should be long and closely confined, but that, if they cannot be convicted by external evidence, they must at last be discharged.[1554] All this is clearly incompatible with the theory of torture.

The _Conseil_ of Pierre de Fontaines, which was probably written about the year 1260, affords the same negative evidence in its full instructions for all the legal proceedings then in use. In these three works, notwithstanding the reforms attempted by St. Louis, the legist seems to imagine no other solution than the wager of battle for the settlement of doubtful cases, wherein testimony is insufficient. The form of trial is still public, in the feudal or royal courts, and every opportunity is given both for the attack and the defence. The work of de Fontaines, moreover, happens to furnish another proof that he wrote at the commencement of a transition period, during which the use of torture was introduced. In the oldest MSS. of his work, which are considered to date from 1260 to 1280, there is a passage to the effect that a man convicted of crime may appeal, if he has not confessed, or, when he has confessed, if it has been in consequence of some understanding (_covent_). In later MSS., transcribed in the early part of the fourteenth century, the word “covent” is replaced by “tourmenz,”[1555] thus showing not only the introduction of torture during the interval, but also that a conviction obtained by it was not final.

The Ordonnance of 1254, indeed, as far as it relates to torture, is asserted by modern criticism to have been applicable only to Languedoc.[1556] If so, its importance is reduced to a minimum, for in the document as registered in the council of Béziers in 1255, the section respecting torture is omitted,[1557] and this would seem to show that even in the south, where the traditions of the Roman law were continuous, torture was still regarded as an innovation not to be legally sanctioned. Still it was gradually winning its way against popular repugnance, for we have in 1260 a charter from Alphonse de Poitiers to the town of Auzon (Auvergne), in which he grants exemption from torture in all trials irrespective of the gravity of the crime.[1558]

While giving due weight, however, to all this, we must not lose sight of the fact that the laws and regulations prescribed in royal ordonnances and legal text-books were practically applicable only to a portion of the population. All non-nobles, who had not succeeded in extorting special privileges by charter from their feudal superiors, were exposed to the caprices of barbarous and irresponsible power. It was a maxim of feudal law that God alone could intervene between the lord and his villein—“Mès par notre usage n’a-il, entre toi et ton vilein, juge fors Deu”[1559]—the villein being by no means necessarily a serf; and another rule prohibited absolutely the villein from appealing from the judgment of his lord.[1560] Outside of law, and unauthorized by coutumiers and ordonnances, there must, under such institutions, have been habitually vast numbers of cases in which the impatient temper of the lord would seek a solution of doubtful matters, in the potent cogency of the rack or scourge, rather than waste time or dignity in endeavoring to cross-question the truth out of a quick-witted criminal.

Still, as an admitted legal procedure, the introduction of torture was very gradual. The _Olim_, or register of cases decided by the Parlement of Paris, extends, with some intervals, from 1255 to 1318, and the paucity of affairs recorded in which torture was used shows that it could not have been habitually resorted to during this period. The first instance, indeed, only occurs in 1283, when the Bishop of Amiens complains of the bailli of that town for having tried and tortured three clerks in defiance of the benefit of clergy which entitled them to exemption from secular jurisdiction. The bailli pleaded ignorance of their ecclesiastical character, and his plea was admitted as sufficient.[1561] The next instance of the use of torture is found in 1299, when the royal bailli of Senlis cites the mayor and jurats of that town before the Parlement, because in a case of theft they had applied the question to a suspected criminal; and although theft was within their competence, the bailli argued that torture was an incident of “haute justice” which the town did not possess. The decision was in favor of the municipality.[1562] The next year (1300) we find a clerk, wearing habit and tonsure, complaining that the royal officials of the town of Villeneuve in Rouergue had tortured him in divers ways, with ropes and heavy weights, heated eggs and fire, so that he was crippled, and had been forced to expend three hundred livres Tournois in medicines and physicians. This, with other proper damages, he prays may be made good to him by the perpetrators, and the arrêt of the Parlement orders their persons and property to be seized, and their possessions valued, in order that the amount may be properly assessed among them.[1563] Philippe le Bel, notwithstanding his mortal quarrel with the papacy—or perhaps in consequence of it—was ever careful of the rights and privileges of the clergy, among which the immunity from secular jurisdiction and consequently from torture was prominent. The case evidently turned upon that point.

The fourth case does not present itself until 1306. Two Jews, under accusation of larceny by their brethren, complain that they had been illegally tortured by the bailli of Bourges, and though one of them under the infliction had confessed to complicity, the confession is retracted and damages of three thousand livres Tournois are demanded. On the other hand, the bailli maintains that his proceedings are legal, and asks to have the complainants punished in accordance with the confession. The Parlement adopts a middle course; it acquits the Jews and awards no damages, showing that the torture was legal and a retracted confession valueless.[1564]

The fifth case, which occurs in 1307, is interesting as having for its reporter no less a personage than Guillaume de Nogaret, the captor of Boniface VIII. A certain Guillot de Ferrières, on a charge of robbery, had been tried by the judge of Villelongue and Nicolas Bourges, royal chatelain of Mont-Ogier. The latter had tortured him repeatedly and cruelly, so that he was permanently crippled, and his uncle, Étienne de Ferrières, Chatelain of Montauban, claims damages. The decision condemns Nicolas Bourges in a mulct of one thousand livres Tournois, half to Guillot for his sufferings and half to Étienne for his expenses, besides a fine to the crown.[1565] It is evident that judges were not allowed to inflict unlimited torment at their pleasure.

The sixth case, occurring in 1310, may be passed over, as the torture was not judicial, but merely a brutal outrage by a knight on a noble damsel who resisted his importunities: though it may be mentioned that of the fine inflicted on him, fifteen hundred livres Tournois enured to the crown and only one hundred to the victim.[1566]

The seventh case took place in 1312, when Michael de Poolay, accused of stealing a sum of money from Nicolas Loquetier, of Rouen, was subjected to a long imprisonment and torture at Château-Neuf de Lincourt, and was then brought to the Châtelet at Paris, where he was again examined without confession or conviction. Meanwhile, the real criminal confessed the theft, and Nicolas applies to the Parlement for the liberation of Michael, which is duly granted.[1567]

A long interval then occurs, and we do not hear of torture again until 1318, when Guillaume Nivard, a money-changer of Paris, was accused of coining, and was tortured by the Prevôt of the Châtelet. He contends that it was illegal, while the Prevôt asserts that his jurisdiction empowered him to administer it. The Parlement investigates the case, and acquits the prisoner, but awards him no damages.[1568]

The essentially common-place and trivial character of these cases has its interest in showing that the practice of appealing to the Parlement was not confined to weighty matters, and therefore that the few instances in which torture was involved in such appeals afford a fair index of the rarity of its use during this period. These cases, too, have seemed to me worth reciting, as they illustrate the principles upon which its application was based in the new jurisprudence, and the tentative and uncertain character of the progress by which the primitive customs of the European races were gradually becoming supplanted by the resuscitated Roman law.

A few instances, moreover, are on record in which torture was used in affairs of state. Thus in 1304 we find Charles of Valois torturing a Flemish beguine who was accused of an attempt to poison him. The mode adopted was the application of fire to the soles of the victim’s feet, and though she was said to have confessed, still he liberated her after a short imprisonment.[1569] In the frightful scandal, also, of the daughters-in-law of Philippe le Bel, which occurred in 1314, though torture does not seem to have been used in examining the principals, either the princesses or their paramours, it was freely employed upon the numerous persons who were accused as accessories.[1570] In 1315, during the long trial of Enguerrand de Marigny, sacrificed after the death of Philippe le Bel to the hatred of Charles of Valois, torture was freely used to obtain evidence from his dependents;[1571] and in the same year Raoul de Presles, accused of the death of the late king, was exposed to torture without obtaining a confession, and was finally liberated.[1572]

This undermining of the ancient customs had not been allowed to continue uninterrupted by protest and resistance. In the closing days of the reign of Philippe le Bel the feudal powers of France awoke to the danger with which they were menaced by the extension of the royal prerogative during the preceding half-century. A league was formed which seemed to threaten the existence of the institutions so carefully nurtured by St. Louis and his successors. It was too late, however, and though the storm broke on the new and untried royalty of Louis Hutin, the crown lawyers were already too powerful for the united seigneurie of the kingdom. When the various provinces presented their complaints and their demands for the restoration of the old order of things, they were met with a little skilful evasion, a few artful promises, some concessions which were readily withdrawn, and negatives carefully couched in language which seemed to imply assent.

Among the complaints we find the introduction of torture enumerated as an innovation upon the established rights of the subject, but the lawyers who drew up the replies of the king took care to infringe as little as they could upon a system which their legal training led them to regard as an immense improvement in procedure, especially as it enabled them to supersede the wager of battle, which they justly regarded as the most significant emblem of feudal independence.

The movement of the nobles resulted in obtaining from the king a series of charters for the several provinces, by which he defined, as vaguely, indeed, as he could, the extent of royal jurisdiction claimed, and in which he promised to relieve them from certain grievances. In some of these charters, as in those granted to Britanny, to Burgundy, and to Amiens and Vermandois, there is no allusion made to torture.[1573] In the two latter, the right to the wager of battle is conceded, which may explain why the nobles of those provinces were careless to protect themselves from a process which they could so easily avoid by an appeal to the sword. In the charter of Languedoc, all that Louis would consent to grant was a special exemption to those who had enjoyed the dignity of capitoul, consul, or decurion of Toulouse and to their children, and even this trifling concession did not hold good in cases of _lèse-majesté_ or other matters particularly provided for by law; the whole clause, indeed, is borrowed from the Roman law, which may have reconciled Louis’s legal advisers to it, more especially as, for the first time in French jurisprudence, it recognized the crime of _lèse-majesté_, which marked the triumph of the civil over the feudal law.[1574] Normandy only obtained a vague promise that no freeman should be subjected to torture unless he were the object of violent presumptions in a capital offence, and that the torture should be so regulated as not to imperil life or limb; and though the Normans were dissatisfied with this charter, and succeeded in getting a second one some months later, they gained nothing on this point.[1575]

The official documents concerning Champagne have been preserved to us more in detail. The nobles of that province complained that the royal prevôts and serjeants entered upon their lands to arrest their men and private persons, whom they then tortured in defiance of their customs and privileges (“contre leurs coustumes et libertez”). To this Louis promised to put an end. The nobles further alleged that, in contravention of the ancient usages and customs of Champagne (“contre les us et coustumes enciens de Champagne”), the royal officers presumed to torture nobles on suspicion of crime, even though not caught in the act, and without confession. To this Louis vaguely replied that for the future no nobles should be tortured, except under such presumptions as might render it proper, in law and reason, to prevent crime from remaining unpunished; and that no one should be convicted unless confession was persevered in for a sufficient time after torture.[1576] This, of course, was anything but satisfactory, and the Champenois were not disposed to accept it; but all that they could obtain after another remonstrance was a simple repetition of the promise that no nobles should be tortured except under capital accusations.[1577] The struggle apparently continued, for, in 1319, we find Philippe le Long, in a charter granted to Périgord and Quercy, promising that the proceedings preliminary to torture should be had in the presence of both parties, doubtless to silence complaints as to the secret character which criminal investigations were assuming.[1578]

The use of torture was thus permanently established in the judicial machinery of France as one of the incidents in the great revolution which destroyed the feudal power. Even yet, however, it was not universal, especially where communes had the ability to preserve their franchises. Count Beugnot has published, as an appendix to the _Olim_, a collection known as the _Tout Lieu de St. Disier_, consisting of 314 decisions of doubtful cases referred by the magistrates of St. Dizier to the city of Ypres for solution, as they were bound to do by their charter. This especially directed that all cases not therein provided for should be decided according to the customs of Ypres, and consequently, for two hundred and fifty years, whenever the eschevins of the little town in Champagne felt in doubt they referred the matter to the lordly burghers of Flanders as to a court of last resort. In the _Tout Lieu_ the cases date mostly from the middle third of the fourteenth century, and were selected as a series of established precedents. The fact that, throughout the whole series, torture is not alluded to in a single instance shows that it was a form of procedure unknown to the court of the eschevins of St. Dizier, and even to the superior jurisdiction of the bailli of their suzerain, the Seigneur of Dampierre. Many of these cases seem peculiarly adapted to the new inquisitorial system. Thus, in 1335, a man was attacked and wounded in the street at night. A crowd collected at his cries, and he named the assailant. No rule was more firmly established than the necessity of two impartial witnesses to justify condemnation, and the authorities of St. Dizier, not knowing what course to take, applied as usual for instructions to the magistrates of Ypres. The latter defined the law to be that the court should visit the wounded man on his sick-bed and adjure him by his salvation to tell the truth. If on this he named any one and subsequently died, the accused should be pronounced guilty; if, on the other hand, he recovered, then the accused should be treated according to his reputation: that is, if of good fame, he should be acquitted; if of evil repute, he should be banished.[1579] No case more inviting under the theory of torture could well be imagined, and yet neither the honest burghers of St. Dizier nor the powerful magnates of Ypres seem to have entertained the idea of its application. So, again, when the former inquire what proof is sufficient when a man accuses another of stealing, the answer is that no evidence will convict, unless the goods alleged to be stolen are found in the possession of the accused.[1580] The wealthy city of Lille equally rejected the process of torture. The laws in force there, about the year 1350, prescribe that in cases of homicide conviction ought to be based upon absolute evidence, but where this is unattainable then the judges are allowed to decide on mere opinion and belief, for uncertain matters cannot be rendered certain.[1581] In such a scheme of legislation, the extortion of a confession as a condition precedent to condemnation can evidently find no place.

Attempts to introduce torture in Aquitaine were apparently made, but they seem to have been resisted. In the Coutumier of Bordeaux, during the fourteenth century there is a significant declaration that the sages of old did not wish to deprive men of their liberties and privileges. Torture, therefore, was prohibited in the case of all citizens except those of evil repute and declared to be infamous. The nearest approach to it that was permitted was tying the hands behind the back, without using pulleys to lift the accused from the ground.[1582]

By this time, however, places where torture was not used were exceptional. An allusion to it in 1335 in the register of the court of the Priory of St. Martin-des-Champs shows that already it was not confined to the royal jurisdiction, but that it was recognized as an incident to the possession of haute justice.[1583] By a document of 1359, it appears that it was the custom to torture all malefactors brought to the Châtelet of Paris,[1584] and though privileged persons constantly endeavored to exempt themselves from it, as the consuls of Villeneuve in 1371,[1585] and the Seigneur d’Argenton in 1385,[1586] other privileged persons as constantly sought to obtain the power of inflicting it, as shown in the charter of Milhaud, granted in 1369, wherein the consuls of that town are honored with the special grace that no torture shall be administered except in their presence, if they desire to attend.[1587] At the end of the century, indeed, the right to administer torture in cases wherein the accused denied the charge was regularly established among the privileges of haute justiciers.[1588]

By this time criminal procedures were fully recognized as divisible into two classes—the _procès ordinaire_ and the _procès extraordinaire_. The former of these was carried on by the form of inquest, the latter by inquisition, in which torture was habitually employed. There were no definite rules to determine the class to which any given case might be referred, and though at the beginning of the fourteenth century the _procès ordinaire_, as its name infers, was the usual mode of trying criminals, gradually the choice between the two was left to the discretion of the judge, and this discretion leaned so constantly in favor of the _procès extraordinaire_ that by the close of the century it had become the rule rather than the exception.[1589]

This is very clearly shown by the records of the Châtelet of Paris from 1389 to 1392,[1590] which enable us to form a tolerably distinct idea of the part assigned to torture in the criminal procedure of this period. It had virtually become the main reliance of the tribunal, for the cases in which it was not employed appear to be simply exceptional. Noble blood afforded no exemption, for gentlemen were placed on the rack for petty crimes as freely as roturiers.[1591] No avenue of escape was open to the miserable culprit. If he denied the alleged offence, he was tortured at once for a confession, and no settled rules seem to have existed as to the amount of evidence requisite to justify it. Thus, in one case, a man on the _tresteau_ relating the misdeeds of his evil life chanced to mention the name of another as a professional thief. The latter was immediately arrested, and though there was no specific crime charged against him, he was tortured repeatedly until sufficient confession was extracted from him to justify his execution.[1592] If, on the other hand, the prisoner persistently denied his guilt there was no limit to the repetition of the torture, and yet, even when no confession could be thus extracted, the failure did not always serve to exempt him from punishment.[1593] If he retracted the confession extorted from him, he was tortured again and again until he ceased to assert his innocence, for it was a positive necessity for conviction that the confession under torture should be confirmed by the prisoner without constraint—“sans aucune force, paour ou contrainte de gehayne”—when sentence came to be passed upon him outside of the torture-chamber.

If, again, the luckless prisoner confessed the crime of which he stood accused, he was further promptly tortured to find out what other offences he might at some previous time have committed. This, which we will see hereafter, continued to be to the end one of the worst abuses of the torture system, was already a practice at least half a century old,[1594] and it had become so habitual that it is scarcely worth while to cite particular examples, though the case of Gervaise Caussois may be briefly referred to on account of its quaintness. Arrested for stealing some iron tools, he promptly confessed the crime. Among the reasons on record for proceeding to torture him in order to elicit an account of his other presumed misdemeanors, is included the excellent one, “attendu qu’il est scabieux.” Under the torment the poor wretch accused himself of some other petty thefts, but even this did not satisfy his examiners, for the next day he was again brought before them and bound to the _tresteau_, when he confessed a few more trifling larcenies. Having apparently thus obtained enough evidence to satisfy their consciences, his judges mercifully hanged him without further infliction.[1595] In fact, the whole matter apparently was left very much to the discretion of the court, which seems to have been bound by no troublesome limitations to its curiosity in investigating the past career of the miserable beings brought before it.

How that discretion was habitually exercised may be judged from the case of a certain Fleurant de Saint-Leu, who was brought up for examination Jan. 4, 1390, on the charge of stealing a silver buckle. Denying the accusation, he was twice tortured with increasing severity, until he confessed the alleged crime, but asserted it to be a first offence. On Jan. 8th the court decided that as the petty theft was insufficient to merit death, he should be tortured repeatedly to ascertain whether he had not been guilty of something else worthy of capital punishment. On that day he was therefore thrice exposed to the question, in an ascending scale of severity, but without success. On the 13th he was again twice tortured, when the only admission that rewarded the examiners was that three years before he had married a prostitute at Senlis. This uncommon obduracy seems to have staggered the court, for he was then kept in his dungeon until April 9th, when his case was carefully considered, and though nothing had been extorted from him since his first confession, he was condemned, and was hanged the same day—thus proving how purely gratuitous were the fearful sufferings to which he had been exposed in order to gratify the curiosity or satisfy the consciences of his remorseless judges.[1596]

Few criminals, however, gave so much trouble as Fleurant. The “petit et grand tresteaux,” on which the torture was customarily administered, were a sword which cut many a Gordian knot, and, by rendering the justice of the Châtelet sharp and speedy, saved the court a world of trouble. It was by no means unusual for the accused to be arraigned, tortured, condemned, and executed all on the same day,[1597] and not a few of the confessions read as though they were fictions composed by the accused in order to escape by death from the interminable suffering to which they were exposed. The sameness frequently visible in a long catalogue of crimes seems to indicate this, but it is especially notable in some singular cases of parties accused of poisoning wells throughout the north of France, when there was an evident necessity for the authorities to satisfy the excited populace by procuring them some victims, and the unfortunate wretches who were arrested on suspicion were tortured until they were ready to accuse themselves of anything.[1598] In one case, indeed, the prisoner stated that he had known a person tortured at the Châtelet with such severity that he died in the hands of his torturers, and for himself he declared, after one or two inflictions, that he would confess whatever would relieve him from a repetition of what he had endured.[1599]

Yet, with all this reckless disregard of the plainest principles of justice, the torture process had not yet entirely obliterated the memory of the old customary law. The prisoner was not, as we shall see practised hereafter, kept in ignorance of the charges against him and of the adverse testimony. The accusation was always made known to him, and when witnesses were examined, the record is careful to specify that it was done in his presence.[1600] The court deliberated in private, but the prisoner was brought before it to receive condemnation either to torture or to death. Facilities were likewise afforded him to procure evidence in his favor, when the swift justice of the Châtelet might allow him leisure for such defence, for his friends were allowed to see him in prison during the intervals of his trial.[1601]

Thus, in the capital, the royal power, aided by the civil lawyers, was fast encroaching upon all the liberties of the subject, but in the provinces a more stubborn resistance was maintained. It was some little time after the period under consideration that the ancient Coutumier of Britanny was compiled, and in it we find the use of torture, though fully established as a judicial expedient, yet subjected to much greater restrictions. A prisoner, accused of a capital crime and denying the charge, was liable to torture only if positive evidence was unattainable, and then only if he had been under accusation within the previous five years. Moreover, if he endured its application three times without confession, he was discharged acquitted as one in whose favor God would work a miracle[1602]—thus showing how torture was assimilated in the popular mind to the ordeal which it had supplanted. Such escape indeed might well be regarded as a miracle, for the reckless barbarity of the age had little scruple in pushing the administration of the question to the utmost rigor. About this same time, the Council of Reims, in 1408, drew up a series of instructions for the bishops of the province in visiting their dioceses; and among the abuses enumerated for investigation was whether the judges were in the habit of torturing prisoners to death on feast days.[1603] It was not the cruelty, but the sacrilege to which the Church took exception.

* * * * *

Even in Germany, the citadel of feudalism, the progress of the new ideas and the influence of the Roman law had spread to such an extent that in the Golden Bull of Charles IV., in 1356, there is a provision allowing the torture of slaves to incriminate their masters in cases of sedition against any prince of the empire;[1604] and the form of expression employed shows that this was an innovation. Liége, which at that period formed part of the empire, furnishes us with a case in 1376 which shows not only that torture then was an habitual resource in procedure, but also that it was applied as illogically there as we have seen it in Paris. The young wife of a burgher named Gilles Surlet was found one morning strangled in bed. The husband, as though conscious of innocence, at once presented himself to the authorities asserting with fearful oaths his ignorance of the crime. A servant girl of the household was then arrested, and she, without torture, immediately confessed that she had committed the murder; but the judges, not satisfied with this, submitted her to the question, when she denied her guilt with the most provoking constancy. Suspicion then grew against the husband, and he was duly tortured without extorting a confession, though at the same time he declared that the girl was innocent; and on being taken back to his cell he strangled himself during the night. The chronicler does not record what was the fate of the girl, but the body of Gilles was treated as that of a murderer—it was dragged to the place of execution and broken on the wheel, while the superstitious did not fail to note that on this dreary transit it was accompanied by a black hog, which refused to be driven away until the gallows was reached.[1605]

In Corsica, at the same period, we find the use of torture fully established, though subject to careful restrictions. In ordinary cases, it could only be employed by authority of the governor, to whom the judge desiring to use it transmitted all the facts of the case; the governor then issued an order, at his pleasure, prescribing the mode and degree to which it might be applied.[1606] In cases of treason, however, these limitations were not observed, and the accused was liable to its infliction as far and as often as might be found requisite to effect a purpose.[1607]

The Italian communities seem to have still at this period preserved some limitations on the application of torture. In Milan, in 1338, it could be only employed in capital cases where there was evidence or public repute; it could only be ordered by the lord of the city, his vicar, the podestà, and the criminal judges, and even these were heavily fined if they used it illegally or elsewhere than in the accustomed torture-chamber; the abuse of torturing witnesses had already been introduced, but the judge was warned that this could be done only when the witness swore to having been personally present and then varied in his testimony or gave false evidence. Torture, moreover, could only be inflicted once unless new evidence supervened.[1608] In the statutes of Mirandola, revised in 1386, it could not be employed in cases which did not involve corporal punishment or a fine of at least twenty-five lire; nor even then unless the podestà submitted all the evidence to the accused and gave him a sufficient and definite term in which to purge himself.[1609] In Piacenza, about the same period, torture was guarded with even more careful restrictions. There is no indication that witnesses were exposed to it. Every effort to obtain testimony was to be exhausted, and the accused was to be afforded full opportunities for defence before he could be subjected to it, and then there must be sufficient indications of guilt, mere rumor being inadequate to justify it. Moreover, except in cases of high treason, theft, highway robbery, assassination, and arson, a single judge could not order it, but the case had to be submitted to all the judges and the podestà, who determined by a majority in secret ballot whether it should be employed. If any of these formalities were omitted, the confession extorted was invalid, and the judge was mulcted in a fine of a hundred lire.[1610]

The peculiar character of Venetian civilization made torture almost a necessity. The atmosphere of suspicion and secrecy which surrounded every movement of that republican despotism, the mystery in which it delighted to shroud itself, and the pitiless nature of its legislation conspired to render torture an indispensable resource. How freely it was administered, especially in political affairs, is well illustrated in the statutes of the State Inquisition, where the merest suspicion is sufficient to authorize its application. Thus, if a senatorial secretary were observed to be more lavish in his expenditures than his salary would appear to justify, he was at once suspected of being in the pay of some foreign minister, and spies were ordered on his track. If he were then simply found to be absent from his house at undue hours, he was immediately to be seized and put to the torture. So, if any one of the innumerable secret spies employed by the inquisitors were insulted by being called a spy, the offender was arrested and tortured to ascertain how he had guessed the character of the emissary.[1611] Human life and human suffering were of little account in the eyes of the cold and subtle spirits who moulded the policy of the mistress of the Adriatic.

The rude mountaineers of the Valtelline preserved to a later date their respect for the ancient guarantees of the law. In their statutes as revised in 1548 torture is indeed permitted, but only in case of persons accused of crimes involving the penalty of blood. In accusations of less heinous offences and in matters concerning money, it was strictly forbidden; and even in cases where it was allowed it could not be employed without the assent of the central authority of the territory. When proceedings were had by inquisition, moreover, all the evidence was submitted to the accused, and a sufficient delay was accorded to him in which to frame a defence before he could be ordered to the torture. Thus were avoided the worst abuses to which the system had been made subservient long before that time in all the surrounding regions.[1612]

Other races adopted the new system with almost equal hesitation. Thus in Hungary the first formal embodiment of torture in the law occurs in 1514, and though the terms employed show that it had been previously used to some extent, yet the restrictions laid down manifest an extreme jealousy of its abuse. Mere suspicion was not sufficient. To justify its application, a degree of proof was requisite which was almost competent for condemnation, and the nature of this evidence is well exemplified in the direction that if a judge himself witnessed a murder, he could not order the homicide to be tortured unless there was other testimony sufficient, for he could not be both witness and judge, and his knowledge of the crime belonged to his private and not to his judicial capacity.[1613] With such refinements, there would seem to be little danger of the extension of the custom.

In Poland, torture does not make its appearance until the fifteenth century, and then it was introduced gradually, with strict instructions to the tribunals to use the most careful discretion in its administration.[1614] Until, at least, the seventeenth century, there remained in force laws of Casimir the Great promulgated in the fourteenth, prohibiting any prosecution not brought by a proper accuser, in whose presence alone could the matter be heard, thus showing that the inquisitorial process found no foothold in the Polish courts.[1615] In Russia, the first formal allusion to it is to be found in the Ulagenié Zakonof, a code promulgated in 1497, by Ivan III., which merely orders that persons accused of robbery, if of evil repute, may be tortured to supply deficiencies of evidence; but as the duel was still freely allowed to the accused, the use of torture must have been merely incidental.[1616] From another source, dating about 1530, we learn that it was customary to extort confessions from witches by pouring upon them from a height a small stream of cold water; and in cases of contumacious and stubborn criminals, the finger-nails were wrenched off with little wooden wedges.[1617] Still, torture makes but little show in the subsequent codes, such as the Sudebtnick, issued in 1550, and the Sobornoié Ulagenié, promulgated in 1648.[1618] In fact, these regions were still too barbarous for so civilized a process.

In addition to these national jurisdictions there was a wide field open to the use of torture in the spiritual courts established everywhere, for it was not confined to the secular tribunals and to the Inquisition. The latter had so fully familiarized the minds of churchmen with it that it came to be employed generally in the episcopal tribunals which, through their exclusive jurisdiction over clerks and over all matters that could be connected with spiritual offences, had considerable criminal business. We may assume, however, that in this respect they were limited by the laws of the land and were debarred from its use in countries where it was not allowed in secular matters. In 1310 it required the most urgent pressure from Clement V. to induce Edward II. to violate the common law by permitting the papal emissaries to torture the English Templars, and the King sought to conceal the illegality of the act by an order to the gaolers which bore that the inquisitors and episcopal ordinaries should be allowed to deal with the bodies of the prisoners “in accordance with ecclesiastical law,”[1619] showing how completely in the minds of men torture was identified with the spiritual courts. When the canons of the council of Vienne were promulgated in 1317 and the inquisitor Bernard Gui remonstrated with John XXII. against a clause intended to diminish the abuse of torture by inquisitors, he argued that it was a reflection on the Inquisition, because the episcopal courts were subject to no such restrictions on its use.[1620] The Church carried this blessing with it wherever it went. When in 1593 St. Toribio, Archbishop of Lima, sought to reform the abuses of the episcopal courts throughout his vast province, he issued an _arancel_ or tariff of fees for all their officials. In this we find that the executioner was not to charge more than a peso for torturing a prisoner, while the notary was entitled to two reales for drawing up a sentence of torture, and one real for each folio of his record of its administration and the confession of the accused.[1621]

## CHAPTER VII.

THE INQUISITORIAL PROCESS.

During this period, while Central and Western Europe had advanced with such rapid strides of enlightenment, the inquisitorial process, based upon torture, had become the groundwork of all criminal procedure, and every detail was gradually elaborated with the most painstaking perverseness.

Allusion has already been made to the influence of the Inquisition in introducing the use of torture. Its influence did not cease there, for with torture there gradually arose the denial to the accused of all fair opportunity of defending himself, accompanied by the system of secret procedure which formed so important a portion of the inquisitorial practice. In the old feudal courts, the prosecutor and the defendant appeared in person. Each produced his witnesses; the case was argued on both sides, and unless the wager of battle or the ordeal intervened, a verdict was given in accordance with the law after duly weighing the evidence, while both parties were at liberty to employ counsel and to appeal to the suzerain. When St. Louis endeavored to abolish the duel and to substitute a system of inquests, which were necessarily to some extent _ex parte_, he did not desire to withdraw from the accused the legitimate means of defence, and in the Ordonnance of 1254 he expressly instructs his officers not to imprison the defendant without absolute necessity, while all the proceedings of the inquest are to be communicated freely to him.[1622] All this changed with time and the authoritative adoption of torture. The theory of the Inquisition, that the suspected man was to be hunted down and entrapped like a wild beast, that his guilt was to be assumed, and that the efforts of his judges were to be directed solely to obtaining against him sufficient evidence to warrant the extortion of a confession without allowing him the means of defence—this theory became the admitted basis of criminal jurisprudence. The secrecy of these inquisitorial proceedings, moreover, deprived the accused of one of the greatest safeguards accorded to him under the Roman law of torture. That law, as we have seen, required the formality of inscription, by which the accuser who failed to prove his charge was liable to the _lex talionis_, and in crimes which involved torture in the investigation he was duly tortured. This was imitated by the Wisigoths, and its principle was admitted and enforced by the Church before the introduction of the Inquisition had changed its policy;[1623] but modern Europe, in borrowing from Rome the use of torture, combined it with the inquisitorial process, and thus in civilized Christendom it speedily came to be used more recklessly and cruelly than ever it had been in pagan antiquity.

In 1498, an assembly of notables at Blois drew up an elaborate ordonnance for the reformation of justice in France. In this, the secrecy of the inquisitorial process is dwelt upon with peculiar insistence as of the first importance in all criminal cases. The whole investigation was in the hands of the government official, who examined every witness by himself, and secretly, the prisoner having no knowledge of what was done, and no opportunity of arranging a defence. After all the testimony procurable in this one-sided manner had been obtained, it was discussed by the judges, in council with other persons named for the purpose, who decided whether the accused should be tortured. He could be tortured but once, unless fresh evidence subsequently was collected against him, and his confession was read over to him the next day, in order that he might affirm or deny it. A secret deliberation was then held by the same council, which decided as to his fate.[1624]

This cruel system was still further perfected by Francis I., who, in an ordonnance of 1539, expressly abolished the inconvenient privilege assured to the accused by St. Louis, which was apparently still occasionally claimed, and directed that in no case should he be informed of the accusation against him, or of the facts on which it was based, nor be heard in his defence. Upon examination of the _ex parte_ testimony, without listening to the prisoner, the judges ordered torture proportioned to the gravity of the accusation, and it was applied at once, unless the prisoner appealed, in which case his appeal was forthwith to be decided by the superior court of the locality.[1625] The whole process was apparently based upon the conviction that it was better that a hundred innocent persons should suffer than that one culprit should escape, and it would not be easy to devise a course of procedure better fitted to render the use of torture universal. There was some protection indeed, theoretically at least, in the provision which held the judge responsible when an innocent prisoner was tortured without sufficient preliminary proof to justify it; but this salutary regulation, from the very nature of things, could not often be enforced, and it was so contrary to the general spirit of the age that it soon became obsolete. Thus, in Brittany, perhaps the most independent of the French provinces, the Coutumier, as revised in 1539, retains such a provision,[1626] but it disappears in the revision of 1580.

But even this was not all. Torture, as thus employed to convict the accused, became known as the _question préparatoire_; and, in defiance of the old rule that it could be applied but once, a second application, known as the _question définitive_ or _préalable_, became customary, by which, after condemnation, the prisoner was again subjected to the extremity of torment in order to discover whether he had any accomplices, and, if so, to identify them. In this detestable practice we find another instance of the unfortunate influence of the Inquisition in modifying the Roman law. The latter expressly and wisely provided that no one who had confessed should be examined as to the guilt of another;[1627] and in the ninth century the authors of the False Decretals had emphatically adopted the principle, which thus became embodied in ecclesiastical law,[1628] until the ardor of the Inquisition in hunting down heretics caused it to regard the conviction of the accused as a barren triumph unless he could be forced to incriminate his possible associates. It thus finally became a rule of the Inquisition, promulgated by papal authority, that all who confessed or were convicted should be tortured at the discretion of the inquisitor to reveal the names of their accomplices.[1629]

Torture was also generically divided into the _question ordinaire_ and _extraordinaire_—a rough classification to proportion the severity of the infliction to the gravity of the crime or the urgency of the case. Thus, in the most usual kind of torment, the strappado, popularly known as the _Moine de Caen_, the ordinary form was to tie the prisoner’s hands behind his back with a piece of iron between them; a cord was then fastened to his wrists by which, with the aid of a pulley, he was hoisted from the ground with a weight of one hundred and twenty-five pounds attached to his feet. In the extraordinary torture, the weight was increased to two hundred and fifty pounds, and when the victim was raised to a sufficient height he was dropped and arrested with a jerk that dislocated his joints, the operation being thrice repeated.[1630]

Thus, in 1549, we see the system in full operation in the case of Jacques de Coucy, who, in 1544, had surrendered Boulogne to the English. This was deemed an act of treachery, but he was pardoned in 1547; yet, notwithstanding his pardon, he was subsequently tried, convicted, condemned to decapitation and quartering, and also to the _question extraordinaire_ to obtain a denunciation of his accomplices.[1631]

When Louis XIV., under the inspiration of Colbert, remoulded the jurisprudence of France, various reforms were introduced into the criminal law, and changes both for better and worse were made in the administration of torture. The Ordonnance of 1670 was drawn up by a committee of the ablest and most enlightened jurists of the day, and it is a melancholy exhibition of human wisdom when regarded as the production of such men as Lamoignon, Talon, and Pussort. The cruel mockery of the _question préalable_ was retained; and in the principal proceedings all the chances were thrown against the prisoner. All preliminary testimony was still _ex parte_. The accused was heard, but he was still examined in secret. Lamoignon vainly endeavored to obtain for him the advantage of counsel, but Colbert obstinately refused this concession, and the utmost privilege allowed the defence was the permission accorded to the judge, at his discretion, to confront the accused with the adverse witnesses. In the _question préliminaire_, torture was reserved for capital cases, when the proof was strong and yet not enough for conviction. During its application it could be stopped and resumed at the pleasure of the judge, but if the accused were once unbound and removed from the rack, it could not be repeated, even though additional evidence were subsequently obtained.[1632]

It was well to prescribe limitations, slender as these were; but in practice it was found impossible to enforce them, and they afforded little real protection to the accused when judges, bent upon procuring conviction, chose to evade them. A contemporary whose judicial position gave him every opportunity of knowing the truth, remarks: “They have discovered a jugglery of words and pretend that though it may not be permissible to _repeat_ the torture, still they have a right to _continue_ it, though there may have been an interval of three whole days. Then, if the sufferer, through good luck or by a miracle, survives this reduplication of agony, they have discovered the notable resource of _nouveaux indices survenus_, to subject him to it again without end. In this way they elude the intention of the law, which sets some bounds to these cruelties and requires the discharge of the accused who has endured the question without confession, or without confirming his confession after torture.”[1633] Nor were these the only modes by which the scanty privileges allowed the prisoner were curtailed in practice. In 1681, a royal Declaration sets forth that, in the jurisdiction of Grenoble, judges were in the habit of refusing to listen to the accused, and of condemning him unheard, an abuse which was prohibited for the future. Yet other courts subsequently assumed that this prohibition was only applicable to the Parlement of Grenoble, and in 1703 another Declaration was necessary to enforce the rule throughout the kingdom.[1634]

The Ordonnance of 1670, moreover, gave formal expression to another abuse which was equally brutal and illogical—the employment of torture _avec réserve des preuves_. When the judge resolved on this, the silence of the accused under torment did not acquit him, though the whole theory of the question lay in the necessity of confession. He simply escaped the death penalty, and could be condemned to any other punishment which the discretion of the judge might impose, thus presenting the anomaly of a man neither guilty nor innocent, relieved from the punishment assigned by the law to the crime for which he had been arraigned, and condemned to some other penalty without having been convicted of any offence. This punishing for suspicion was no new thing. Before torture came fully into vogue, in the early part of the fourteenth century, a certain Estevenes li Barbiers of Abbeville was banished under pain of death for suspicion of breach of the peace, and was subsequently tried, acquitted, and allowed to return.[1635] About the same period a barber of Anet and his sons were arrested by the monks of St. Martin-des-Champs on suspicion of killing a guard who was keeping watch over some hay. The evidence against them was insufficient, and they were taken to the gallows as a kind of moral torture not infrequently used in those days. Still refusing to confess, they were banished forever under pain of hanging, because, as the record ingenuously states, the crime was not fully proved against them.[1636] So in the records of the Parlement of Paris there is a sentence rendered in 1402 against Jehan Dubos, a procureur of the Parlement, and Ysabelet his wife, for suspicion of the poisoning of another procureur, Jehan le Charron, the first husband of Ysabelet, and Dubos was accordingly hanged, while his wife was burnt.[1637] Jean Bodin, one of the clearest intellects of the sixteenth century, lays it down as a rule that the penalty should be proportioned to the proof; he ridicules as obsolete the principle that when the evidence is not sufficient for conviction the accused should be discharged, and mentions stripes, fines, imprisonment, the galleys, and degradation as proper substitutes for death when there is no evidence and only violent presumption. He gives in illustration of this a case personally known to him of a noble of Le Mans, who was condemned to nine years of the galleys for violent suspicion of murder.[1638] The application to the torture-process of this determination not to allow a man to escape unless his innocence was proved led to the illogical system of the _réserve des preuves_.

The theory on which the doctors of the law proceeded was that if there were evidence sufficient for conviction and the judge yet tortured the criminal in surplusage without obtaining a confession, the accused could not be condemned to the full punishment of his offence, because the use of torture in itself weakened the external proofs, and therefore the culprit must be sentenced to some lighter punishment—a refinement worthy of the inconsequential dialectics of the schools.[1639] The cruel absurdities which the system produced in practice are well illustrated by a case occurring in Naples in the sixteenth century. Marc Antonio Maresca of Sorrento was tried by the Admiralty Court for the murder of a peasant of Miani, in the market-place. The evidence was strong against him, but there were no eye-witnesses, and he endured the torture without confession. The court asserted that it had reserved the evidence, and condemned him to the galleys for seven years. He appealed to the High Court of the royal council, and the case was referred to a distinguished jurisconsult, Tomaso Grammatico, a member of the council. The latter reported that he must be considered as innocent, after having passed through torture without confession, and denied the right of the court to reserve the evidence. Then, with an exhibition of the peculiar logic characteristic of the criminal jurisprudence of the time, he concluded that Maresca might be relegated to the islands for five years, although it was a recognized principle of Neapolitan law that torture could be inflicted only in accusations of crimes of which the penalty was greater than relegation. The only thing necessary to complete this tissue of legal wisdom was afforded by the council, which set aside the judgment of the Admiralty Court, rejected the report of their colleague, and condemned the prisoner to the galleys for three years.[1640] Somewhat less complicated in its folly, but more inexcusable from its date, was the sentence of the court of Orléans in 1740, by which a man named Barberousse, from whom no confession had been extorted, was condemned to the galleys for life, because, as the sentence declared, he was _strongly suspected_ of premeditated murder.[1641] A more pardonable, but not more reasonable, example occurred at Halle in 1729, where a woman accused of infanticide refused to confess, and as she labored under a physical defect which rendered the application of torture dangerous to life, the authorities, after due consideration and consultation of physicians, spared her the torture and banished her without conviction.[1642]

* * * * *

The same tendency to elude all restrictions on the use of torture was manifested in the Netherlands, where the procedure was scarcely known until the 16th century, and where it was only administered systematically by the ordonnance on criminal justice of Philip II. in 1570. When once employed it rapidly extended until it became almost universal, both in the provinces which threw off the yoke of Spain and in those which remained faithful. The limits which Philip had imposed on it were soon transcended. He had forbidden its employment in all cases “où il n’y a plaine, demye preuve, ou bien où la preuve est certaine et indubitable,” thus restricting it to those where there was very strong presumption without absolute certainty. In transcription and translation, however, the wording of the ordonnance became changed to “plaine ou demye preuve, ou bien où la preuve est incertaine ou douteuse,” thus allowing it in all cases where the judge might have a doubt not of the guilt but of the innocence of the accused; and by the time these errors were discovered by a zealous legal antiquarian, the customs of the tribunals had become so fixed that the attempt to reform them was vain.[1643] Even the introduction of torture could not wholly eradicate the notion on which the ordeal system was based, that a man under accusation must virtually prove his innocence.

* * * * *

In Germany, torture had been reduced to a system, in 1532, by the Emperor Charles V., whose _Caroline Constitutions_ contain a more complete code on the subject than had previously existed, except in the records of the Inquisition. Inconsistent and illogical, it quotes Ulpian to prove the deceptive nature of the evidence thence derivable; it pronounces torture to be “res dira, corporibus hominum admodum noxia et quandoque lethalis, cui et mors ipsa prope proponenda;”[1644] in some of its provisions it manifests extreme care and tenderness to guard against abuses, and yet practically it is merciless to the last degree. Confession made during torture was not to be believed, nor could a conviction be based upon it; yet what the accused might confess after being removed from torture was to be received as the deposition of a dying man, and was full evidence.[1645] In practice, however, this held good only when adverse to the accused, for he was brought before his judge after an interval of a day or two, when, if he confirmed the confession, he was condemned, while if he retracted it he was at once thrust again upon the rack. In confession under torture, moreover, he was to be closely cross-questioned, and if any inconsistency was observable in his self-condemnation the torture was at once to be redoubled in severity.[1646] The legislator thus makes the victim expiate the sins of his own vicious system; the victim’s sufferings increase with the deficiency of the evidence against him, and the legislator consoles himself with the remark that the victim has only himself to thank for it, “de se tantum non de alio quæratur.” To complete the inconsistency of the code, it provided that confession was not requisite for conviction; irrefragable external evidence was sufficient; and yet even when such evidence was had, the judge was empowered to torture in mere surplusage.[1647] Yet there was a great show of tender consideration for the accused. When the weight of conflicting evidence inclined to the side of the prisoner, torture was not to be applied.[1648] Two adverse witnesses, or one unexceptionable one, were a condition precedent, and the legislator shows that he was in advance of his age by ruling out all evidence resting on the assertions of magicians and sorcerers.[1649] To guard against abuse, the impossible effort was made to define strictly the exact quality and amount of evidence requisite to justify torture, and the most elaborate and minute directions were given with respect to all the various classes of crime, such as homicide, child-murder, robbery, theft, receiving stolen goods, poisoning, arson, treason, sorcery, and the like;[1650] while the judge administering torture to an innocent man on insufficient grounds was liable to make good all damage or suffering thereby inflicted.[1651] The amount of torment, moreover, was to be proportioned to the age, sex, and strength of the patient; women during pregnancy were never to be subjected to it; and in no case was it to be carried to such a point as to cause permanent injury or death.[1652]

## CHAPTER VIII.

FINAL SHAPE OF THE TORTURE SYSTEM.

Charles V. was too astute a ruler not to recognize the aid derivable from the doctrines of the Roman law in his scheme of restoring the preponderance of the Kaisership, and he lost no opportunity of engrafting them on the jurisprudence of Germany. In his Criminal Constitutions, however, he took care to embody largely the legislation of his predecessors and contemporaries, and though protests were uttered by many of the Teutonic princes, the code, adopted by the Diet of Ratisbon in 1532, became part and parcel of the common law of Germany.[1653] A fair idea of the shape assumed, under these influences, by the criminal law in its relations with torture, can be obtained by examining some of the legal text-books which were current as manuals of practice from the sixteenth to the eighteenth century.[1654] As most of the authors of these works appear to condemn the principle or to lament the necessity of torture, their instructions as to its employment may safely be assumed to represent the most humane and enlightened views current during the period.[1655] It is easy to see from them, however, that though the provisions of the Caroline Constitutions were still mostly in force, yet the practice had greatly extended itself, and that the limitations prescribed for the protection of innocence and helplessness had become of little real effect.

Upon the theory of the Roman law, nobles and the learned professions had claimed immunity from torture, and the Roman law inspired too sincere a respect to permit a denial of the claim,[1656] yet the ingenuity of lawyers reduced the privilege to such narrow proportions that it was practically almost valueless. For certain crimes, of course, such as _majestas_, adultery, and incest, the authority of the Roman law admitted of no exceptions, and to these were speedily added a number of other offences, classed as _crimina excepta_ or _nefanda_, which were made to embrace almost all offences of a capital nature, in which alone torture was as a rule allowable. Thus, patricide, uxoricide, fratricide, witchcraft, sorcery, counterfeiting, theft, sacrilege, rape, arson, repeated homicide, etc., came to be included in the exceptional cases, and the only privileges extended in them to nobles were that they should not be subjected to “plebeian” tortures.[1657] As early as 1514, I find an instance which shows how little advantage these prerogatives afforded in practice. A certain Dr. Bobenzan, a citizen of good repute and syndic of Erfurt, who both by position and profession belonged to the excepted class, when brought up for sentence on a charge of conspiring to betray the city, and warned that he could retract his confession, extracted under torture, pathetically replied—“During my examination, I was at one time stretched upon the rack for six hours, and at another I was slowly burned for eight hours. If I retract, I shall be exposed to these torments again and again. I had rather die”—and he was duly hanged.[1658] In fact, all these exemptions were rather theoretical than practical, and they were speedily set aside.[1659]

In Catholic countries, of course, the clergy were specially favored, but the immunity claimed for them by the canon law was practically reduced to nearly the same as that accorded to nobles.[1660] The torture inflicted on them, however, was lighter than in the case of laymen, and proof of a much more decided character was required to justify their being exposed to torment. As an illustration of this, von Rosbach remarks that if a layman is found in the house of a pretty woman, most authors consider the fact sufficient to justify torture on the charge of adultery, but that this is not the case with priests, who if they are caught embracing a woman are presumed to be merely blessing her.[1661] They moreover had the privilege of being tortured only at the hands of clerical executioners, if such were to be had.[1662] In Protestant territories respect for the cloth was manifested by degrading them prior to administering the rack or strappado.[1663]

Some limitations were imposed as to age and strength. Children under fourteen could not be tortured, nor the aged whose vigor was unequal to the endurance, but the latter could be tied to the rack, and menaced to the last extremity; and the elasticity of the rule is manifested in a case which attracted attention at Halle in the eighteenth century, in which a man more than eighty years of age was decided to be fit to bear the infliction, and only escaped by opportunely dying.[1664] In fact, Grillandus argues that age confers no immunity from torture, but that a humane judge will inflict it only moderately, except in atrocious crimes; as for children, though regular torture could not be employed on them, the rod could be legitimately used.[1665] Insanity was likewise a safeguard, and much discussion was had as to whether the deaf, dumb, and blind were liable or not. Zanger decides in the affirmative whenever, whether as principals or witnesses, good evidence was to be expected from them;[1666] and Scialoja points out that though deaf-mutes as a rule are not to be tortured because they cannot dictate a confession, yet if they can read and write so as to understand the accusation and write out what they have to say, they are fit subjects for the torturer.[1667] Pregnant women also were exempt until forty days after childbed, even though they had become so in prison for the express purpose of postponing the infliction.[1668] Some kinds of disease likewise conferred exemption, and jurisconsults undertook with their customary minuteness to define with precision this nosology of torture, leading to discussions more prolonged than profitable. Gout, for instance, gave rise to doubt, and some authors were found to affirm that they knew of cases in which gouty patients had been cured by a brisk application of the implements of the _marter-kammer_ or torture-chamber.[1669] Other legists gravely disputed whether in the case of epileptics the judge should bear in mind the aspects of the moon and the equinoxes and solstices, at which times the paroxysms of the disease were apt to be more violent. Those who thus escaped torture on account of disease presented a problem which the jurists solved in their ordinary fashion by condemning them to some other punishment than that provided for the crime of which they had been accused but not convicted.[1670]

In theory the accused could be tortured only once, but this, like all other restrictions in favor of humanity, amounted to but little. A repetition of torture could be justified on the ground that the first application had been light or insufficient; the production of fresh evidence authorized a second and even a third infliction; a failure to persevere in confession after torture rendered a repetition requisite; and even a variation in the confession required confirmation by the rack or strappado.[1671] Many writers affirm that a second torture is requisite to purge away the defect of the infamy incurred by confession under the first, as well as to strengthen the evidence against accomplices.[1672] In fact, some authorities go so far as to place it entirely at the discretion of the judge whether the accused shall be subjected or not to repeated torment without fresh evidence,[1673] and Del Rio mentions a case occurring in Westphalia wherein a man accused of lycanthropy was tortured twenty times.[1674] This practice of repeating torture we are told by many authorities was exceedingly common.[1675]

Another positive rule was that torture could only be applied in accusations involving life or limb.[1676] Thus, for instance, in provinces where usury was punishable only by confiscation, torture could not be used to prove it, but where it entailed also some corporal infliction, the accused could be subjected to the rack.[1677] Yet when Bologna undertook to remove the abuses of her torture system she still allowed it in cases involving a pecuniary fine of a hundred lire, or over.[1678] Whipping being a corporal punishment, and yet a much lighter infliction than torture, the legists were divided as to whether a crime for which it was the only penalty was one involving the liability of the accused to torture, but the weight of authority, as usual, leaned to the side of the free employment of the rack.[1679] All these fine-spun distinctions, however, were of little moment, for Senckenberg assures us that he had known torture to be resorted to in mercantile matters, where money only was at stake.[1680] Slaves could always be tortured in civil suits when their testimony was required, and freemen when there was suspicion of fraud;[1681] and it was a general rule of mercantile law that it could be employed in accusations of fraudulent bankruptcy.[1682] How easily, indeed, all these barriers were overleaped is seen in the rule that where the penalty was a fine, and the accused was too poor to pay it, he could be tortured, the torture serving in lieu of punishment. Thus, whether he was innocent or guilty, the judge was determined that he should not escape.[1683] Another method in constant use of evading the limitation in offences which by statute did not involve torture was by depriving him of food in prison, or stripping him of clothes in winter, the slow torment of starvation and cold not being classed legally as torture.[1684]

Equally absolute was the maxim that torture could not be employed unless there was positive proof that crime of some sort had been committed, for its object was to ascertain the criminal and not the crime;[1685] yet von Rosbach remarks that as soon as any one claimed to have lost anything by theft, the judges of his day hastened to torture all suspect, without waiting to determine whether or not the theft had really been committed as assumed;[1686] and von Boden declares that many tribunals were in the habit of resorting to it in cases wherein subsequent developments showed that the alleged crime had really not taken place, a proceeding jocosely characterized by a brother lawyer as putting the cart before the horse, and bridling him by the tail.[1687] The history of torture is full of cases illustrating its effectiveness when thus used. Boyvin du Villars relates that during the war in Piedmont, in 1559, he released from the dungeons of the Marquis of Masserano an unfortunate gentleman who had been secretly kept there for eighteen years, in consequence of having attempted to serve a process from the Duke of Savoy on the marquis. His disappearance having naturally been attributed to foul play, his kindred prosecuted an enemy of the family, who, under stress of torture, duly confessed to having committed the murder, and was accordingly executed in a town where Masserano himself was residing.[1688] Godelmann relates that a monument in a church in upper Germany, representing a man broken on a wheel, commemorated a case in which two young journeymen set out together to make the accustomed tour of the country. One of them returned alone, clad in the garments of the other, and was suspected of having made way with him. He was arrested, and in the absence of all other evidence was promptly put to the torture, when he confessed the crime in all its details and was executed on the wheel—soon after which his companion returned. Another case was that of a young man near Bremen whose widowed mother lived in adultery with a servant. The son quarrelled with the man, who fled and took service with another employer at a considerable distance. His father, not knowing his departure, accused the youth of murder, and torture speedily drew from the latter a full confession of the crime, including his throwing the corpse into the Weser. Not long after his execution the adulterous serving-man reappeared and was duly put to death, as also was his father, to make amends for the blunder of the law.[1689]

A universal prescription existed that the torment should not be so severe or so prolonged as to endanger life or limb or to injure the patient permanently; but this, like all the other precautions, was wholly nugatory. Senckenberg assures us that he was personally cognizant of cases in which innocent persons had been crippled for life by torture under false accusations;[1690] and the meek Jesuit Del Rio, in his instructions to inquisitors, quietly observes that the flesh should not be wounded nor the bones broken, but that torture could scarce be properly administered without more or less dislocation of the joints.[1691] We may comfort ourselves with the assurance of Grillandus, that cases were rare in which permanent mutilation or death occurred under the hands of the torturer,[1692] and this admission lends point to the advice which Simancas gives to judges, that they should warn the accused, when brought into the torture-chamber, that if he is crippled or dies under the torture he must hold himself accountable for it in not spontaneously confessing the truth[1693]—a warning which was habitually given in the Spanish Inquisition before applying the torture. Von Boden, moreover, very justly points out the impossibility of establishing any rules or limitations of practical utility, when the capacity of endurance varies so greatly in different constitutions, and the executioners had so many devices for heightening or lessening, within the established bounds, the agony inflicted by the various modes of torture allowed by law. Indeed, he does not hesitate to exclaim that human ingenuity could not invent suffering more terrible than was constantly and legally employed, and that Satan himself would be unable to increase its refinements.[1694] In this as in everything else the legists agreed that the discretion of the judge was the sole and final arbiter in deciding whether the accused was “competently” tortured—that is, whether the number and severity of the inflictions were sufficient to purge him of the adverse evidence.[1695]

It is true that the old rules which subjected the judge to some responsibility were still nominally in force. When torture was ordered without a preliminary examination, or when it was excessive and caused permanent injury, the judge was held by some authorities to have acted through malice, and his office was no protection against reclamation for damages.[1696] Zanger also quotes the Roman law as still in force, to the effect that if the accused dies under the torture, and the judge has been either bribed or led away by passion, his offence is capital, while if there had been insufficient preliminary evidence, he is punishable at discretion.[1697] But, on the other hand, Baldo tells us that unless there is evidence of malice the presumption is in favor of the judge in whose hands a prisoner has died or been permanently crippled, for he is assumed to have acted through zeal for justice,[1698] and though there were some authorities who denied this, it seems to have been the general practical conclusion.[1699] The secrecy of criminal trials, moreover, offered an almost impenetrable shield to the judge, and the recital by Godelmann of the various kinds of evidence by which the prisoner could prove the fact that he had been subjected to torture shows how difficult it was to penetrate into the secrets of the tribunals.[1700] According to Damhouder, indeed, the judge could clear himself by his own declaration that he had acted in accordance with the law, and without fraud or malice.[1701] We are therefore quite prepared to believe the assertion of Senckenberg that the rules protecting the prisoner had become obsolete, and that he had seen not a few instances of their violation without there being any idea of holding the judge to accountability,[1702] an assertion which is substantially confirmed by Goetz.[1703]

Not the least of the evils of the system, indeed, was its inevitable influence upon the judge himself. He was required by his office to be present during the infliction of torture, and to conduct the interrogatory personally. Callousness to human suffering, whether natural or acquired, thus became a necessity, and the delicate conscientiousness which should be the moving principle of every Christian tribunal was well-nigh an impossibility.[1704] Nor was this all, for when even a conscientious judge had once taken upon himself the responsibility of ordering a fellow-being to the torture, every motive would lead him to desire the justification of the act by the extortion of a confession;[1705] and the very idea that he might be possibly held to accountability, instead of being a safeguard for the prisoner became a cause of subjecting him to additional agony. Indeed, the prudence of persevering in torture until a confession was reached was at least recognized, if not advised, by jurists, and in such a matter to suggest the idea was practically to recommend it.[1706] Both the good and the evil impulses of the judge were thus enlisted against the unfortunate being at his mercy. Human nature was not meant to face such temptations, and the fearful ingenuity which multiplied the endless refinements of torture testifies how utterly humanity yielded to the thirst of wringing conviction from the weaker party to the unequal conflict, where he who should have been a passionless arbiter was made necessarily a combatant. How completely the prisoner thus became a quarry to be hunted to the death is shown by the jocular remark of Farinacci, a celebrated authority in criminal law, that the torture of sleeplessness, invented by Marsigli, was most excellent, for out of a hundred martyrs exposed to it not two could endure it without becoming confessors as well.[1707] Few, when once engaged in such a pursuit, could be expected to follow the example of the Milanese judge, who resolved his doubts as to the efficacy of torture in evidence by killing a favorite mule, and allowing the accusation to fall upon one of his servants. The man of course denied the offence, was duly tortured, confessed, and persisted in his confession after torture. The judge, thus convinced by experiment of the fallacy of the system, resigned the office whose duties he could no longer conscientiously discharge, and in his subsequent career rose to the cardinalate. The mode in which these untoward results were usually treated is illustrated in another somewhat similar case which was told to Augustin Nicholas at Amsterdam in explanation of the fact that the city was obliged to borrow a headsman from the neighboring towns whenever the services of one were required for an execution. It appears that a young man of Amsterdam, returning home late at night from a revel, sank upon a doorstep in a drunken sleep. A thief emptied his pockets, securing, among other things, a dirk, with which, a few minutes later, he stabbed a man in a quarrel. Returning to the sleeper he slipped the bloody weapon back to its place. The young man awoke, but before he had taken many steps he was seized by the watch, who had just discovered the murder. Appearances were against him; he was tortured, confessed, persisted in confession after torture, and was duly hanged. Soon after the real criminal was condemned for another crime, and revealed the history of the previous one, whereupon the States-General of the United Provinces, using the ordinary logic of the criminal law, deprived the city of Amsterdam of its executioner, as a punishment for a result that was inevitable under the system.[1708]

Slight as were the safeguards with which legislators endeavored to surround the employment of torture, they thus became almost nugatory in practice under a system which, in the endeavor to reduce doubts into certainties, ended by leaving everything to the discretion of the judge. It is instructive to see the parade of insisting upon the necessity of strong preliminary evidence,[1709] and to read the elaborate details as to the exact kind and amount of testimony severally requisite in each description of crime, and then to find that common report was held sufficient to justify torture, or unexplained absence before accusation, prevarication under examination, and even silence; and it is significant of the readiness to resort to the question on the slenderest pretexts when we see judges solemnly warned that an evil countenance, though it may argue depravity in general, does not warrant the presumption of actual guilt in individual cases;[1710] though pallor, under many circumstances, was considered to sanction the application of torture,[1711] even as a pot containing toads, found in the home of a suspected witch, justified her being placed on the rack.[1712] In fact, witchcraft, poisoning, highway robbery, and other crimes difficult of proof, were considered to justify the judge in proceeding to torture on lighter indications than offences in which evidence was more readily obtainable.[1713] Subtle lawyers thus exhausted their ingenuity in discussing all possible varieties of indications, and there grew up a mass of confused rules, wherein, on many points, each authority contradicted the other. In a system which thus waxed so complex, the discretion of the judge at last became the only practical guide, and the legal writers themselves acknowledge the worthlessness of the rules so laboriously constructed when they admit that it is left for his decision to determine whether the indications are sufficient to warrant the infliction of torture.[1714] How absolute was this discretion, and how it was exercised, is manifest when Damhouder declares that in his day bloodthirsty judges were in the habit of employing the severest torture without sufficient proof or investigation, boasting that by its means they could extract a confession of everything.[1715] This fact was no novelty, for the practice had existed, we may say, since the first introduction of torture. Ippolito dei Marsigli early in the sixteenth century speaks of judges habitually torturing without preliminary evidence, and goes so far as to assert, with all the weight of his supreme authority, that a victim of such wrongs if he killed his inhuman judge could not be held guilty of homicide nor be punished with death for the slaying.[1716] It was perhaps to avoid this responsibility that some of these zealous law-despisers resorted to the most irregular means to procure evidence. Godelmann and von Rosbach both tell us that the magistrates of their time, in the absence of all evidence, sometimes had recourse to sorcerers and to various forms of divination in order to obtain proof on which they could employ the rack or strappado. Boys whose shoes were newly greased with lard were thought to have a special power of detecting witches, and enthusiastic judges accordingly would sometimes station them, after duly anointing their boots, at the church doors, so that the luckless wretches could not get out without being recognized.[1717]

How shocking was the abuse made of this arbitrary power is well illustrated by a case which occurred in the Spanish colony of New Granada about the year 1580. The judges of the royal court of Santafé had rendered themselves odious by their cruelty and covetousness, when one morning some pasquinades against them were found posted in the public plaza. Diligent search failed to discover the author, but a victim was found in the person of a young scrivener whose writing was thought to bear some resemblance to that of the offensive papers. He was at once seized, and though libel was not an offence under the civil law which justified the application of torture, he was ordered to the rack, when he solemnly warned the judge deputed to inflict it that if he should die under it he would summon his tormentor to answer in the presence of God within three days. The judge was intimidated and refused to perform the office, but another was found of sterner stuff, who duly performed his functions without extracting a confession, and the accused was discharged. Then a man who desired to revenge himself on an enemy asserted that the writing of the latter was like that of the pasquinades. Juan Rodriguez de los Puertos, the unfortunate thus designated, was immediately arrested with all his family. An illegitimate son was promptly tortured, and stated that his father had written the libels and ordered him to post them. Then Juan himself was ordered to the rack, but, while protesting his innocence, he begged rather to be put to death, as he was too old to endure the torment. He was accordingly hanged, and his son was scourged with two hundred lashes. All that was needed to render manifest the hideous injustice of this proceeding was developed a few years later, when the judge who was afraid to risk the appeal of the first victim was condemned to death for an assassination, and on the scaffold confessed that he himself had been the author of the libels against his brother justices.[1718]

Such a system tends of necessity to its own extension, and it is therefore not surprising to find that the aid of torture was increasingly invoked. The prisoner who refused to plead, whether there was any evidence against him or not, could be tortured until his obstinacy gave way.[1719] Even witnesses were not spared, whether in civil suits or criminal prosecutions.[1720] It was discretionary with the judge to inflict moderate torture on them when the truth could not otherwise be ascertained. Witnesses of low degree could always be tortured for the purpose of supplying the defect in their testimony arising from their condition of life. Some jurists, indeed, held that no witness of low or vile condition could be heard without torture, but others maintained that poverty alone was not sufficient to render it necessary. Witnesses who were infamous could not be admitted to testify without torture; those of good standing were tortured only when they prevaricated, or when they were apparently committing perjury;[1721] but, as this was necessarily left with the judges to determine, the instructions for him to guide his decision by observing their appearance and manner show how completely the whole case was in his power, and how readily he could extort evidence to justify the torture of the prisoner, and then extract from the latter a confession by the same means. In prosecutions for treason, all witnesses, irrespective of their rank, were liable to torture,[1722] so that when Pius IV., in 1560, was determined to ruin Cardinal Carlo Caraffa, no scruple was felt, during his trial, as to torturing his friends and retainers to obtain the evidence upon which he was executed.[1723] There was a general rule that witnesses could not be tortured until after the examination of the accused, because, if he confessed, their evidence was superfluous; but there were exceptions even to this, for if the criminal was not within the power of the court, witnesses could be tortured to obtain evidence against him in his absence.[1724] Indeed, in the effort made early in the sixteenth century to reform the abuse of torture in Bologna, it was provided that if there were evidence to show that a man was acquainted with a crime he could be tortured to obtain evidence on which to base a prosecution, and this before any proceedings had been commenced against the delinquent.[1725] Evidently there was no limit to the uses to which torture could be put by a determined legislator.

An ingenious plan was also adopted by which, when two witnesses gave testimony irreconcilable with each other, their comparative credibility was tested by torturing both simultaneously in each other’s presence.[1726] Evidence given under torture was esteemed the best kind, and yet with the perpetually recurring inconsistency which marks this branch of criminal law it was admitted that the spontaneous testimony of a man of good character could outweigh that of a disreputable person under torment.[1727] Witnesses, however, could not be tortured more than three times;[1728] and it was a question mooted between jurists whether their evidence thus given required, like the confession of an accused person, to be subsequently ratified by them.[1729] A reminiscence of Roman law, moreover, is visible in the rule that no witness could be tortured against his kindred to the seventh degree, nor against his near connections by marriage, his feudal superiors, or other similar persons.[1730]

There doubtless was good reason underlying the Roman rule, universally followed by modern legists, that, whenever several parties were on trial under the same accusation, the torturer should commence with the weakest and tenderest, for thus it was expected that a confession could soonest be extracted; but this eager determination to secure conviction gave rise to a refinement of cruelty in the prescription that if a husband and wife were arraigned together, the wife should be tortured first, and in the presence of her husband; and if a father and son, the son before his father’s face.[1731]

Grillandus, who seems to have been an unusually humane judge, describes five degrees of torture, using as a standard the favorite strappado. The first is purely mental—stripping the prisoner and tying his hands behind him to the rope, but not hurting him. This can be used when there is no evidence, and he tells us he had found it very efficacious, especially with the timid and infirm. The other grades are indicated in accordance with the strength of the proof and the heinousness of the crime. The second is hoisting the accused and letting him hang for the space of an Ave or a Pater Noster, or even a Miserere, but not elevating him and letting him fall with a jerk. In the third grade this suspension is prolonged. In the fourth he is allowed to hang for a time varying from a quarter of an hour to an hour, according to the crime and the evidence, and he is jerked two or three times. In the fifth and severest form a weight is attached to his feet and he is repeatedly jerked. This Grillandus describes as terrible; the whole body is torn, the limbs are ready to part from the trunk, and death itself is preferable. It should only, he says, be used in the gravest crimes, such as heresy or treason, but we have already seen that it was mild in comparison with many inflictions habitually employed.[1732]

Some facilities for defence were allowed to the accused, but in practice they were almost hopelessly slender. He was permitted to employ counsel, and if unable to do so, it was the duty of the judge to look up testimony for the defence.[1733] After all the adverse testimony had been taken, and the prisoner had been interrogated, he could ask to see a copy of the proceedings, in order to frame a defence; but the request could be refused, in which case, the judge was bound to sift the evidence himself, and to investigate the probabilities of innocence or guilt. Von Rosbach states that judges were not in the habit of granting the request, though no authority justified them in the refusal;[1734] and half a century later this is confirmed by Bernhardi, who gives as a reason that by withholding the proceedings from the accused they saved themselves trouble.[1735] The right of the accused to see the evidence adduced against him was still an open question so recently as 1742, for Goetz deems it necessary to argue at some length to prove it.[1736] The recognized tendency of such a system to result in an unfavorable conclusion is shown by Zanger’s elaborate instructions on this point, and his warning that, however justifiable torture may seem, it ought not to be resorted to without at least looking at the evidence which may be attainable in favor of innocence;[1737] while von Rosbach characterizes as the greatest fault of the tribunals of his day, their neglect to obtain and consider testimony for the accused as well as against him.[1738] Indeed, when the public interest was deemed to require it, all safeguards were withdrawn from the prisoner, as when, in 1719 in Saxony, a mandate was issued declaring that in cases of thieves and robbers no defence or exceptions or delays were to be admitted.[1739] In some special and extraordinary cases, the judge might allow the accused to be confronted with the accuser, but this was so contrary to the secrecy required by the inquisitorial system, that he was cautioned that it was a very unusual course, and one not lightly to be allowed, as it was odious, unnecessary, and not pertinent to the trial.[1740]

Theoretically, there was a right of appeal against an order to inflict torture, but this, even when permitted, could usually avail the accused but little, for the _ex parte_ testimony which had satisfied the lower judge could, of course, in most instances, be so presented to the higher court as to insure the affirmation of the order, and prisoners, in their helplessness, would doubtless feel that by the attempt to appeal they would probably only increase the severity of their inevitable sufferings.[1741] Moreover, such appeals were ingeniously and effectually discouraged by subjecting the advocate of the prisoner to a fine or some extraordinary punishment if the appeal was pronounced to be frivolous;[1742] and some authorities, among which was the great name of Carpzovius, denied that in the inquisitorial process there was any necessity of communicating to the accused the order to subject him to torture and then allow him time to appeal against it if so disposed.[1743]

Slender as were these safeguards in principle, they were reduced in practice almost to a nullity. That the discretion lodged in the tribunals was habitually and frightfully abused is only too evident, when von Rosbach deems it necessary to reprove, as a common error of the judges of his time, the idea that the use of torture was a matter altogether dependent upon their pleasure, “as though nature had created the bodies of prisoners for them to lacerate at will.”[1744] Thus it was an acknowledged rule that when guilt could be satisfactorily proved by witnesses, torture was not admissible;[1745] yet Damhouder feels it necessary to condemn the practice of some judges, who, after conviction by sufficient evidence, were in the habit of torturing the convict, and boasted that they never pronounced sentence of death without having first extorted a confession.[1746] Moreover, the practice was continued which we have seen habitual in the Châtelet of Paris in the fourteenth century, whereby, after a man had been duly convicted of a capital crime, he was tortured to extract confessions of any other offences of which he might be guilty;[1747] and as late as 1764, Beccaria lifts his voice against it as a still existing abuse, which he well qualifies as senseless curiosity, impertinent in the wantonness of its cruelty.[1748] Martin Bernhardi, writing in 1705, asserts that this torture after confession and conviction was also resorted to in order to prevent the convict from appealing from the sentence.[1749] So, although a man who freely confessed a crime could not be tortured, according to the general principle of the law, still, if in his confession he adduced mitigating circumstances, he could be tortured in order to force him to withdraw them;[1750] and, moreover, if he were suspected of having accomplices and refused to name them, he could be tortured as in the _question préalable_ of the French courts.[1751] Yet the accusation thus obtained was held to be of so little value that it only warranted the arrest of the parties incriminated, who could not legally be tortured without further evidence.[1752] In the face of all this it seems like jesting mockery to find these grim legists tenderly suggesting that the prisoner should be tortured only in the morning lest his health should suffer by subjecting him to the question after a full meal.[1753]

If the practice of the criminal courts had been devised with the purpose of working injustice under the sacred name of law it could scarce have been different. Even the inalienable privilege of being heard in his defence was habitually refused to the accused by many tribunals, which proceeded at once to torture after hearing the adverse evidence, a refinement of cruelty and injustice which called forth labored arguments by von Rosbach and Simancas to prove its impropriety, thus showing it to be widely practised.[1754] In the same way, the right to appeal from an order to torture was evaded by judges, who sent the prisoner to the rack without a preliminary formal order, thus depriving him of the opportunity of appealing.[1755] Indeed, in time it was admitted by many jurists that the judge at his pleasure could refuse to allow an appeal; and that in no case was he to wait more than ten days for the decision of the superior tribunal.[1756]

The frequency with which torture was used is manifested in the low rate which was paid for its application. In the municipal accounts of Valenciennes, between 1538 and 1573, the legal fee paid to the executioner for each torturing of a prisoner is only two sous and a half, while he is allowed the same sum for the white gloves worn at an execution, and ten sous are given him for such light jobs as piercing the tongue.[1757]

With all this hideous accumulation of cruelty which shrank from nothing in the effort to wring a confession from the wretched victim, that confession, when thus so dearly obtained, was estimated at its true worthlessness. It was insufficient for conviction unless confirmed by the accused in a subsequent examination beyond the confines of the torture-chamber, at an interval of from one to three days.[1758] This confirmation was by no means universal, and the treatment of cases of retracted confession was the subject of much debate. Bodin, in 1579, complains that witches sometimes denied what they had confessed under torture, and that the puzzled judge was then obliged to release them.[1759] Such a result, however, was so totally at variance with the determination to obtain a conviction which marks the criminal jurisprudence of the period that it was not likely to be submitted to with patience. Accordingly the general practice was that, if the confession was retracted, the accused was again tortured, when a second confession and retraction made an exceedingly awkward dilemma for the subtle jurisconsults. They agreed that he should not be allowed to escape after giving so much trouble. Some advocated the regular punishment of his crime, others demanded for him an extraordinary penalty; some, again, were in favor of incarcerating him;[1760] others assumed that he should be tortured a third time, when a confession, followed as before by a recantation, released him from further torment, for the admirable reason that nature and justice alike abhorred infinity.[1761] This was too metaphysical for some jurists, who referred the whole question to the discretion of the judge, with power to prolong the series of alternate confession and retraction indefinitely, acting doubtless on the theory that most prisoners were like the scamp spoken of by Ippolito dei Marsigli, who, after repeated tortures and revocations, when asked by the judge why he retracted his confession so often, replied that he would rather be tortured a thousand times in the arms than once in the neck, for he could easily find a doctor to set his arm but never one to set his neck.[1762] The magistrates in some places were in the habit of imprisoning or banishing such persons, thus punishing them without conviction, and inflicting a penalty unsuited to the crime of which they were accused.[1763] Others solved the knotty problem by judiciously advising that in the uncertainty of doubt as to his guilt, the prisoner should be soundly scourged and turned loose, after taking an oath not to bring an action for false imprisonment against his tormentors;[1764] but, according to some authorities, this kind of oath, or _urpheda_ as it was called, was of no legal value.[1765] Towards the end of the torture system, however, the more humane though not very logical doctrine prevailed in Germany that a retraction absolved the accused, unless new and different evidence was brought forward, and this had to be stronger and clearer than before, for the presumption of innocence was now with the accused, the torture having purged him of former suspicion.[1766]

This necessity of repeating a confession after torture gave rise to another question which caused considerable difference of opinion among doctors, namely, whether witnesses who were tortured had to confirm their evidence subsequently, and whether they, in case of retraction or the presentation of fresh evidence, could be tortured repeatedly. As usual in doubts respecting torture, the weight of authority was in favor of its most liberal use.[1767]

There were other curious inconsistencies in the system which manifest still more clearly the real estimate placed on confessions under torture. If the torture had been inflicted by an over-zealous judge without proper preliminary evidence, confession amounted legally to nothing, even though proofs were subsequently discovered.[1768] If, on the other hand, absolute and incontrovertible proof of guilt were had, and the over-zealous judge tortured in surplusage without extracting a confession, there arose another of the knotty points to which the torture system inevitably tended and about which jurisconsults differed. Some held that he was to be absolved, because torture purged him of all the evidence against him; others argued that he was to be punished with the full penalty of his crime, because the torture was illegal and therefore null and void; others again took a middle course and decided that he was to be visited, not with the penalty of his crime, but with something else, at the discretion of his judge.[1769] According to law, indeed, torture without confession was a full acquittal; but here, again, practice intervened to destroy what little humanity was admitted by jurists, and the accused under such circumstances was still held suspect, and was liable at any moment to be tried again for the same offence.[1770] Indeed, at a comparatively early period after the introduction of torture, we are told that if the accused endured it without confession he was to be kept in prison to see whether new evidence might not turn up: if none came, then the judge was to assign him a reasonable delay for his defence; he was regularly tried, when if convicted he was punished; if not he was discharged.[1771] If, again, a man and woman were tortured on an accusation of adultery committed with each other, and if one confessed while the other did not, both were acquitted according to some authorities, while others held that the one who confessed should receive some punishment different from that provided for the crime, while the accomplice was to be discharged on taking a purgatorial oath.[1772] Nothing more contradictory and illogical can well be imagined, and, as if to crown the absurdity of the whole, torture after conviction was allowed in order to prevent appeals; and if the unfortunate, at the place of execution, chanced to assert his innocence, he was often hurried from the scaffold to the rack in obedience to the theory that the confession must remain unretracted;[1773] though, if the judge had taken the precaution to have the prisoner’s ratification of his confession duly certified to by a notary and witnesses, this trouble might be avoided, and the culprit be promptly executed in spite of his retraction.[1774] One can scarce repress a grim smile at finding that this series of horrors had pious defenders who urged that a merciful consideration for the offender’s soul required that he should be brought to confess his iniquities in order to secure his eternal salvation.[1775] It was a minor, yet none the less a flagrant injustice, that when a man had endured the torture without confession, and was therefore discharged as innocent, he or his heirs were obliged to defray the whole expenses of his prosecution.[1776]

The atrocity of this whole system of so-called criminal justice is forcibly described by the honest indignation of Augustin Nicolas, who, in his judicial capacity under Louis XIV., had ample opportunities of observing its practical working and results. “The strappado, so common in Italy, and which yet is forbidden under the Roman law ... the vigils of Spain, which oblige a man to support himself by sheer muscular effort for seven hours, to avoid sitting on a pointed iron, which pierces him with insufferable pain; the vigils of Florence, or of Marsiglio, which have been described above; our iron stools heated to redness, on which we place poor half-witted women accused of witchcraft, exhausted by frightful imprisonment, rotting from their dark and filthy dungeons, loaded with chains, fleshless, and half dead; and we pretend that the human frame can resist these devilish practices, and that the confessions which our wretched victims make of everything that may be charged against them are true.”[1777] Under such a scheme of jurisprudence, it is easy to understand and appreciate the case of the unfortunate peasant, sentenced for witchcraft, who, in his dying confession to the priest, admitted that he was a sorcerer, and humbly welcomed death as the fitting retribution for the unpardonable crimes of which he had been found guilty, but pitifully inquired of the shuddering confessor whether one could not be a sorcerer without knowing it.[1778]

If anything were wanting to show how completely the inquisitorial process turned all the chances against the accused, it is to be found in the quaint advice given by Damhouder. He counsels the prisoner, when required to plead, to prevent his judge from taking advantage of any adverse points that might occur, as, for instance, in a charge of homicide to assert his innocence, but to add that, if he were proved to have committed the crime, he then declares it to have been done in self-defence.[1779]

* * * * *

We have seen above how great was the part of the Inquisition in introducing and moulding the whole system of torture on the ruins of the feudal law. Even so, in the reconstruction of European jurisprudence, during the sixteenth and seventeenth centuries, the ardor of the inquisitorial proceedings against witchcraft, and the panic on the subject which long pervaded Christendom, had a powerful influence in familiarizing the minds of men with the use of torture as a necessary instrument of justice, and in authorizing its employment to an extent which now is almost inconceivable.

From a very early period, torture was recognized as indispensable in all trials for sorcery and magic. In 358, an edict of Constantius decreed that no dignity of birth or station should protect those accused of such offences from its application in the severest form.[1780] How universal its employment thus became is evident from a canon of the council of Merida, in 666, declaring that priests, when sick, sometimes accused the slaves of their churches of bewitching them, and impiously tortured them against all ecclesiastical rules.[1781] It was, therefore, natural that all such crimes should be regarded as peculiarly subjecting all suspected of them to the last extremity of torture, and its use in the trials of witches and sorcerers came to be regarded as indispensable.

The necessity which all men felt that these crimes should be extirpated with merciless severity, and the impalpable nature of the testimony on which the tribunals had mostly to depend, added to this traditional belief in the fitness of torture. Witchcraft was considered as peculiarly difficult of proof, and torture consequently became an unfailing resource to the puzzled tribunal, although every legal safeguard was refused to the wretched criminal, and the widest latitude of evidence was allowed. Bodin expressly declares that in so fearful a crime no rules of procedure are to be observed.[1782] Sons were admitted to testify against their fathers, and young girls were regarded as the best of witnesses against their mothers; the disrepute of a witness was no bar to the reception of his testimony, and even children of irresponsible age were allowed to swear before they rightly knew the nature of the oath on which hung the life of a parent. Boguet, who presided over a tribunal in Franche Comté, in stating this rule relates a most pathetic case of his own in which a man named Guillaume Vuillermoz was convicted on the testimony of his son, aged twelve, and the hardened nerves of the judge were wrung at the despair of the unhappy prisoner on being confronted with his child, who persisted in his story with a callousness only to be explained by the will of God, who stifled in him all natural affection in order to bring to condign punishment this most hideous offence.[1783] Louïse prints the records of a trial in 1662, wherein Philippe Polus was condemned on the evidence of his daughter, a child in her ninth year. There seems to have been no other proof against him, and according to her own testimony the girl had been a sorceress since her fourth year.[1784] Even advocates and counsel could be forced to give evidence against their clients.[1785] Notwithstanding the ample resources thus afforded for conviction, Jacob Rickius, who, as a magistrate during an epidemic of witchcraft, at the close of the sixteenth century, had the fullest practical experience on the subject, complains that no reliance could be placed on legal witnesses to produce conviction;[1786] and Del Rio only expresses the general opinion when he avers that torture is to be more readily resorted to in witchcraft than in other crimes, in consequence of the extreme difficulty of its proof.[1787]

Even the widespread belief that Satan aided his worshippers in their extremity by rendering them insensible to pain did not serve to relax the efforts of the extirpators of witchcraft, though they could hardly avoid the conclusion that they were punishing only the innocent, and allowing the guilty to escape. Boguet, indeed, seems to recognize this practical inconsistency, and, though it is permissible to use torture even during church festivals, he advises the judge not to have recourse to it because of its inutility.[1788] How little his advice was heeded, and how little the courts deemed themselves able to dispense with torture, is shown in the charter of Hainault of 1619 where in these cases the tribunal is authorized to employ it to ascertain the truth of the charge, or to discover accomplices, or _for any other purpose_.[1789] In this dilemma, various means were adopted to circumvent the arch enemy, of which the one most generally resorted to was that of shaving the whole person carefully before applying the torture,[1790] a process which served as an excuse for the most indecent outrages upon female prisoners. Yet notwithstanding all the precautions of the most experienced exorcists, we find in the bloody farce of Urbain Grandier that the fiercest torments left him in capital spirits and good humor.[1791] Damhouder relates at much length a curious case which occurred under his own eyes while member of the council of Bruges, when he assisted at the torture of a reputed witch who had exercised her power only in good works. During three examinations, she bore the severest torture without shrinking, sometimes sleeping and sometimes defiantly snapping her fingers at the judges. At length, during the process of shaving, a slip of parchment covered with cabalistic characters was found concealed in her person, and on its removal she was speedily brought to acknowledge her pact with the Evil One.[1792] The tender-hearted Rickius was so convinced of this source of uncertainty that he was accustomed to administer the cold-water ordeal to all the miserable old women brought before him on such charges, but he is careful to inform us that this was only preparatory proof, to enable him with a safer conscience to torture those who were so ill-advised as to float instead of sinking.[1793] Grillandus tells us that he had met with cases in which the insensibility to the severest tortures was so complete that only magic arts could explain it; the patient seemed to be supported in the air, or to be in a profound stupor, and he mentions some of the formulas which were employed for the purpose. In one case at Rome a notorious thief suspected of a large robbery came to him voluntarily and said he wanted to purge himself of the rumors against him. He was tortured repeatedly in various ways; when the operation began he muttered something and fell into a stupor in which he was absolutely insensible. After exhausting his ingenuity, Grillandus had to discharge him. In another case the formula “Quemadmodum lac beatæ,” etc., produced the same effect.[1794]

From the time when the Cappadocians of old were said to harden their children with torture in order that they might profitably follow the profession of false witnesses, there existed so general a belief among experienced men that criminals of all kinds had secrets with which to deaden sensibility to torture that it is not improbable that the unfortunates occasionally were able to strengthen their endurance with some anæsthetic. Boguet complains that in modern times torture had become almost useless not only with sorcerers but with criminals in general, and Damhouder asserts that professional malefactors were in the habit of torturing each other in order to be hardened when brought to justice, in consequence of which he advises the judge to inquire into the antecedents of prisoners, in order to proportion the severity of the torture to the necessities of the case.[1795]

When the concentrated energies of these ingenious and determined law dispensers failed to extort by such means a confession from the wretched clowns and gossips thus placed at their mercy, they were even yet not wholly at fault. The primitive teachings of the Inquisition of the thirteenth century were not yet obsolete; they were instructed to treat the prisoner kindly, and to introduce into his dungeon some prepossessing agent who should make friends with him and induce him to confess what was wanted of him, promising to influence the judge to pardon, when at that moment the judge is to enter the cell and to promise grace, with the mental reservation that his grace should be shown to the community and not to the prisoner.[1796] Or, still following the ancient traditions, spies were to be confined with him, who should profess to be likewise sorcerers and thus lead him to incriminate himself, or else the unhappy wretch was to be told that his associate prisoners had borne testimony against him, in order to induce him to revenge himself by turning witness against them.[1797] Boguet, indeed, does not consider it correct to mislead the accused with promises of pardon, and though it was generally approved by legists, he decides against it.[1798] Simancas also considers such artifices to be illegal, and that a confession thus procured could be retracted.[1799] Del Rio, on the other hand, while loftily condemning the outspoken trickery recommended by Sprenger and Bodin, proceeds to draw a careful distinction between _dolum bonum_ and _dolum malum_. He forbids absolute lying, but advises equivocation and ambiguous promises, and then, if the prisoner is deceived, he has only himself to thank for it.[1800] In fact, these men conceived that they were engaged in a direct and personal struggle with the Evil One, and that Satan could only be overcome with his own arts.

When the law thus pitilessly turned all the chances against the victim, it is easy to understand that few escaped. In the existing condition of popular frenzy on the subject, there was no one but could feel that he might at any moment be brought under accusation by personal enemies or by unfortunates compelled on the rack to declare the names of all whom they might have seen congregated at the witches’ sabbat. We can thus readily comprehend the feelings of those who, living under such uncertainties, coolly and deliberately made up their minds in advance that, if chance should expose them to suspicion, they would at once admit everything that the inquisitors might desire of them, preferring a speedy death to one more lingering and scarcely less certain.[1801] The evil fostered with such careful exaggeration grew to so great proportions that Father Tanner speaks of the multitude of witches who were daily convicted through torture;[1802] and that this was no mere form of speech is evident when one judge, in a treatise on the subject, boasted of his zeal and experience in having dispatched within his single district nine hundred wretches in the space of fifteen years, and another trustworthy authority relates with pride that in the diocese of Como alone as many as a thousand had been burnt in a twelvemonth, while the annual average was over a hundred.[1803]

* * * * *

Were it not for the steady patronage bestowed on the system by the Church, it would seem strange that torture should invade the quiet and holy retirement of the cloister. Its use, however, in monasteries was, if possible, even more arbitrary than in secular tribunals. Monks and nuns were exempt from the jurisdiction of the civil authorities, and were bound by vows of blind obedience to their superiors. The head of each convent thus was an autocrat, and when investigating the delinquencies of any of his flock he was subjected to no limitations. Not only could he order the accused to be tortured at will, but the witnesses, whether male or female, were liable to the same treatment, with the exception that in the case of nuns it was recommended that the tortures employed should not be indecent or too severe for the fragility of the sex. As elsewhere, it was customary to commence the torment with the weakest of the witnesses or criminals.[1804]

## CHAPTER IX.

ENGLAND AND THE NORTHERN RACES.

In this long history of legalized cruelty and wrong the races of northern Europe are mostly exceptional. Yet it is somewhat remarkable that the first regular mediæval code in which torture is admitted as a means of investigation is the one of all others in which it would be least expected. The earliest extant law of Iceland, the Grágás, which dates from 1119, has one or two indications of its existence which are interesting as being purely autochthonic and in no sense derivable, as in the rest of Europe, from the Roman law. The character of the people, indeed, and of their institutions would seem to be peculiarly incompatible with the use of torture, for almost all cases were submitted to inquests or juries of the vicinage, and, when this was unsuitable, resort was had to the ordeal. The indigenous origin of the custom, however, is shown by the fact that while it was used in but few matters, the most prominent class subjected to it was that of pregnant women, who have elsewhere been spared by the common consent of even the most pitiless legislators. An unmarried woman with child, who refused to name her seducer, could be forced to do so by moderate torments which should not break or discolor the skin.[1805] The object of this was to enable the family to obtain the fine from the seducer, and to save themselves from the expense of supporting the child. When the mother confessed, however, additional evidence was required to convict the putative father. When the inhabitants of a district, also, refused to deliver up a man claimed as an outlaw by another district, they were bound to torture him to ascertain the truth of the charge[1806]—a provision doubtless explicable by the important part occupied by outlawry in all the schemes of Scandinavian legislation. These are the only instances in which it is permitted, while its occasional abuse is shown by a section providing punishment for its illegal employment.[1807] Slaves, moreover, under the Icelandic, as under other codes, had no protection at law, and were at the mercy of their masters.[1808] These few indications of the liability of freemen, however, disappear about the time when the rest of Europe was commencing to adopt the use of torture. In the _Jarnsida_, or code compiled for Iceland by Hako Hakonsen of Norway, in 1258, there is no allusion whatever to its use.

The Scandinavian nations, as a whole, did not admit torture into their systems of jurisprudence. The institution of the jury in various forms was common to all, and where proof upon open trial was deficient, they allowed, until a comparatively recent date, the accused to clear himself by sacramental purgation. Thus, in the Danish laws of Waldemar II., to which the date of 1240 is generally assigned, there is a species of permanent jury, _sandemend_, as well as a temporary one, _nefninge_, and torture seems to have formed no part of judicial proceedings.[1809] This code was in force until 1683, when that of Christiern V. was promulgated. It is probable that the employment of torture may have crept in from Germany, without being regularly sanctioned, for we find Christiern forbidding its use except in cases of high treason, where the magnitude of the offence seems to him to justify the infraction of the general rule. He, however, encouraged one of its greatest abuses in permitting it on criminals condemned to death.[1810]

Among the kindred Frisians the tendency was the same. Their code of 1323 is a faithful transcript of the primitive Barbarian jurisprudence. It contains no allusions to torture, and as all crimes, except theft, were still compounded for with _wer-gilds_, it may reasonably be assumed that the extortion of confession was not recognized as a judicial expedient.[1811]

So, in Sweden, the code of Raguald, compiled in 1441, and in force until 1614, during a period in which torture flourished in almost every European state, has no place for it. Trials are conducted before twelve _nempdarii_, or jurymen, and in doubtful cases the accused is directed to clear himself by oath or by conjurators. For atrocious crimes the punishments are severe, such as the wheel or the stake, but inflictions like these are reserved for the condemned.[1812] Into these distant regions the Roman jurisprudence penetrated slowly, and the jury trial was an elastic institution which adapted itself to all cases.

* * * * *

To the same causes may be attributed the absence of torture from the Common Law of England. In common with the other Barbarian races, the Anglo-Saxons solved all doubtful questions by the ordeal and wager of law, and in the collection known as the laws of Henry I. a principle is laid down which is incompatible with the whole theory of torture, whether used to extract confession or evidence. A confession obtained by fear or fraud is pronounced invalid, and no one who has confessed his own crime is to be believed with respect to that of another.[1813] Such a principle, combined with the gradual growth of the trial by jury, doubtless preserved the law from the contamination of inquisitorial procedure, though, as we have seen, torture was extensively employed for purposes of extortion by marauders and lawless nobles during periods of civil commotion. Glanville makes no allusion to it, and though Bracton shows a wide acquaintance with the revived Roman jurisprudence, and makes extensive use of it in all matters where it could be advantageously harmonized with existing institutions, he is careful to abstain from introducing torture into criminal procedure.[1814] A clause in Magna Charta, indeed, has been held by high authority to inhibit the employment of torture, but it has no direct allusion to the subject, which was not a living question at the time, and was probably not thought of by any of the parties to that transaction.[1815] In fact, the whole spirit of English law was irreconcilable with the fundamental principles of the inquisitorial process. When the accused was brought before court, he was, it is true, required to appear ungirdled, without boots, or cap, or cloak, to show his humility, but it is expressly directed that he shall not be chained, lest his fetters should embarrass his self-possession in his defence, and he was not to be forced in any way to state anything but of his own free will.[1816] Men who could frame legal maxims so honorable to their sense of justice and so far in advance of the received notions of their age could evidently have nothing in common with the principles which placed the main reliance of the law on confession to be wrung from the lips of an unfortunate wretch who was systematically deprived of all support and assistance. To do so, in fact, is classed with homicide, by a legal writer of the period;[1817] but that it was occasionally practised is shown by his giving a form for the appeal of homicide against judges guilty of it.[1818]

Under the common law, therefore, torture had properly no existence in England, and in spite of occasional efforts on the part of the Plantagenets[1819] the character of the national institutions kept at bay the absorbing and centralizing influences of the Roman law.[1820] Yet their wide acceptance in France, and their attractiveness to those who desired to wield absolute authority, gradually accustomed the crown and the crown lawyers to the idea that torture could be administered by order of the sovereign. Sir John Fortescue, who was Lord Chancellor under Henry VI., inveighs at great length against the French law for its cruel procedures, and with much satisfaction contrasts it with the English practice,[1821] and yet he does not deny that torture was occasionally used in England. Indeed, his fervent arguments against the system, addressed to Prince Edward, indicate an anxiety to combat and resist the spread of civil law doctrines on the subject, which doubtless were favored by the influence of Margaret of Anjou. An instance of its application in 1468 has, in fact, been recorded, which resulted in the execution of Sir Thomas Coke, Lord Mayor of London;[1822] and in 1485, Innocent VIII. remonstrated with Henry VII. respecting some proceedings against ecclesiastics who were scourged, tortured, and hanged.[1823]

Under Henry VIII. and his children, the power of the crown was largely extended, and the doctrine became fashionable that, though under the law no one could be tortured for confession or evidence, yet outside and above the law the royal prerogative was supreme, and that a warrant from the King in Privy Council fully justified the use of the rack and the introduction of the secret inquisitorial process, with all its attendant cruelty and injustice. It is difficult to conceive the subserviency which could reconcile men, bred in the open and manly justice of the common law, to a system so subversive of all the principles in which they had been trained. Yet the loftiest names of the profession were concerned in transactions which they knew to be in contravention of the laws of the land.

Sir Thomas Smith, one of the ornaments of the Elizabethan bar, condemned the practice as not only illegal, but illogical. “Torment or question, which is used by order of the civile law and custome of other countries, ... is not used in England.... The nature of Englishmen is to neglect death, to abide no torment; and therefore hee will confesse rather to have done anything, yea, to have killed his owne father, than to suffer torment.” And yet, a few years later, we find the same Sir Thomas writing to Lord Burghley, in 1571, respecting two miserable wretches whom he was engaged in racking under a warrant from Queen Elizabeth.[1824]

In like manner, Sir Edward Coke, in his Institutes, declares—“So, as there is no law to warrant tortures in this land, nor can they be justified by any prescription, being so lately brought in.” Yet, in 1603, there is a warrant addressed to Coke and Fleming, as Attorney and Solicitor General, directing them to apply torture to a servant of Lord Hundsdon, who had been guilty of some idle speeches respecting King James, and the resultant confession is in Coke’s handwriting, showing that he personally superintended the examination.[1825]

Coke’s great rival, Lord Bacon, was as subservient as his contemporaries. In 1619, while Chancellor, we find him writing to King James concerning a prisoner confined in the Tower on suspicion of treason—“If it may not be done otherwise, it is fit Peacock be put to torture. He deserveth it as well as Peacham did”—Peacham being an unfortunate parson in whose desk was found a MS. sermon, never preached, containing some unpalatable reflections on the royal prerogative, which the prerogative resented by putting him on the rack.[1826]

As in other countries, so in England, when torture was once introduced, it rapidly broke the bounds which the prudence of the Roman lawgivers had established for it. Treason was a most elastic crime, as was shown in 1553 by its serving as an excuse for the torture of one Stonyng, a prisoner in the Marshalsea, because he had transcribed for the amusement of his fellow-captives a satirical description of Philip II., whose marriage with Queen Mary was then under contemplation.[1827] But it was not only in cases of high treason that the royal prerogative was allowed to transgress the limits of the law. Matters of religion, indeed, in those times of perennial change, when dynasties depended on dogmas, might come under the comprehensive head of constructive treason, and be considered to justify the torture even of women, as in the instance of Ann Askew in 1546;[1828] and of monks guilty of no other crime than the endeavor to preserve their monasteries by pretended miracles.[1829] Under Elizabeth, engaged in a death-struggle with Rome, matters became even worse, and torture was habitually used on the unhappy Catholics who were thrown into the Tower. As the whole matter was without the color of law, all legal limitations seem to have been disregarded. The Jesuit Campion was subjected to the rack no less than three times with extreme severity, and in the intervals was made to dispute with Protestant divines.[1830] Having once thus secured its introduction in state trials for treason, the custom inevitably tended to spread to the sphere of the most ordinary criminal business. Suspicion of theft, murder, horse-stealing, embezzlement, and other similar offences was sufficient to consign the unfortunate accused to the tender mercies of the rack, the Scavenger’s Daughter,[1831] and the manacles, when the aggrieved person had influence enough to procure a royal warrant; nor were these proceedings confined to the secret dungeons of the Tower, for the records show that torture began to be habitually applied in the Bridewell. Jardine, however, states that this especially dangerous extension of the abuse appears to have ceased with the death of Elizabeth, and that no trace of the torture even of political prisoners can be found later than the year 1640.[1832] The royal prerogative had begun to be too severely questioned to render such manifestations of it prudent, and the Great Rebellion finally settled the constitutional rights of the subject on too secure a basis for even the time-serving statesmen of the Restoration to venture on a renewal of the former practice. Yet how nearly, at one time, it had come to be engrafted on the law of the land is evident from its being sufficiently recognized as a legal procedure for persons of noble blood to claim immunity from it, and for the judges to admit that claim as a special privilege. In the Countess of Shrewsbury’s case, the judges, among whom was Sir Edward Coke, declared that there was a “privilege which the law gives for the honor and reverence of the nobility, that their bodies are not subject to torture _in causa criminis læsæ majestatis_,” and no instance is on record to disprove the assertion.[1833]

In one class of offences, however, torture was frequently used to a later date, and without requiring the royal intervention. As on the Continent, sorcery and witchcraft were regarded as crimes of such peculiar atrocity, and the dread they excited was so universal and intense, that those accused of them were practically placed beyond the pale of the law, and no means were considered too severe to secure the conviction which in many cases could only be obtained by confession. We have seen that among the refinements of Italian torture, the deprivation of sleep for forty hours was considered by the most experienced authorities on the subject to be second to none in severity and effectiveness. It neither lacerated the flesh, dislocated the joints, nor broke the bones, and yet few things could be conceived as more likely to cloud the intellect, break down the will, and reduce the prisoner into a frame of mind in which he would be ready to admit anything that the questions of his examiners might suggest to him. In English witch-trials, this method of torture was not infrequently resorted to, without the limitation of time to which it was restricted by the more experienced jurists of Italy.[1834]

Another form of torture used in Great Britain, which doubtless proved exceedingly efficacious, was the “pricking” adopted to discover the insensible spot, which, according to popular belief, was one of the invariable signs of a witch. There were even professional “prickers” who were called in as experts in the witch-trials, and who thrust long pins into the body of the accused until some result, either negative or positive, was obtained.[1835] Thus at the prosecution of Janet Barker, in Edinburgh, in 1643, it is recorded that “she had the usual mark on the left shoulder, which enabled one James Scober, a skilful pricker of witches, to find her out by putting a large pin into it, which she never felt.”[1836] One witch pricker, named Kincaid, used to strip his victims, bind them hand and foot, and then thrust his pins into every part of their bodies, until, exhausted and rendered speechless by the torture, they failed to scream, when he would triumphantly proclaim that he had found the witch-mark. Another pricker confessed on the gallows that he had illegally caused the death of a hundred and twenty women whom he had thus pricked for witchcraft.[1837]

In Scotland, torture, as a regular form of judicial investigation, was of late introduction. In the various codes collected by Skene, extending from an early period to the commencement of the fifteenth century, there is no allusion whatever to it. In the last of these codes, adopted under Robert III. by the Parliament of Scotland in 1400, the provisions respecting the wager of battle show that torture would have been superfluous as a means of supplementing deficient evidence.[1838] The influence of the Roman law, however, though late in appearing, was eventually much more deeply felt in Scotland than in the sister kingdom, and consequently torture at length came to be regarded as an ordinary resource in doubtful cases. In the witch persecutions, especially, which in Scotland rivalled the worst excesses of the Inquisition of Italy and Spain, it was carried to a pitch of frightful cruelty which far transcended the limits assigned to it elsewhere. Thus the vigils, which we have seen consisted simply in keeping the accused awake for forty hours by the simplest modes, in Scotland were fearfully aggravated by a witch-bridle, a band of iron fastened around the face, with four diverging points thrust into the mouth. With this the accused was secured immovably to a wall, and cases are on record in which this insupportable torment was prolonged for five and even for nine days. In other cases an enormous weight of iron hoops and chains, amounting to twenty-five or thirty stone, would be accumulated on the body of the patient.[1839] Indeed, it is difficult to believe that the accounts which have been preserved to us of these terrible scenes are not exaggerated. No cruelty is too great for the conscientious persecutor who believes that he is avenging his God, but the limitless capacity of human nature for inflicting is not complemented by a limitless capacity of endurance on the part of the victim; and well authenticated as the accounts of the Scottish witch-trials may be, they seem to transcend the possibility of human strength.[1840] In another respect these witch-trials were marked with a peculiar atrocity. Elsewhere, as we have seen, confession was requisite for condemnation, thus affording some color of excuse for torture. In Scotland, however, the testimony of the pricker was sufficient, and torture thus became a wanton and cruel surplusage, rendered the less defensible in that the poor wretch who yielded to the torment and confessed was rewarded by being mercifully strangled before being burnt, while those who held out under torture were condemned and burnt alive.[1841]

Torture thus maintained its place in the laws of Scotland as long as the kingdom preserved the right of self-legislation, though an attempt seems to have been made to repress it during the temporary union with England under the Commonwealth. In 1652, when the English Commissioners for the administration of justice sat in Edinburgh, among other criminals brought before them were two witches who had confessed their guilt before the Kirk. They were the remains of a party of six, four of whom had died under the tortures employed to procure confession—such as hanging by the thumbs tied behind the back, scourging, burning the feet and head and putting lighted candles into their mouths, clothing them in hair-cloth soaked in vinegar “to fetch off the skin,” &c. Another woman was stripped naked, laid on a cold stone with a hair-cloth over her, and thus kept for twenty-eight days and nights, being fed on bread and water. The diarist who records this adds that “The judges are resolved to inquire into the business, and have appointed the sheriff, ministers, and tormentors to be found out, and to have an account of the ground of this cruelty.”[1842] What result their humane efforts obtained in this particular instance I have not been able to ascertain, but the legal administration of torture was not abolished until after the Union, when, in 1709, the United Parliament made haste, at its second session, to pass an act for “improving the Union,” by which it was done away with.[1843] Yet the spirit which had led to its abuse could not be repressed by Act of Parliament, and a case is on record, occurring in 1722, when a poor old woman in her dotage, condemned to be burnt as a witch, actually warmed her withered hands at the stake lighted for her destruction, and mumbled out her gladness at enjoying the unaccustomed warmth.[1844]

## 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. xxv. For a minute examination into the origin of the jury-trial, see a series of articles by Prof. J. B. Thayer in the Harvard Law-Review for 1892.

[121] Laws of Ethelred, Tit. III. c. xiii.

[122] L. Henrici I. Tit. xxxi. § 8; Tit. lxvi. § 10.

[123] Constit. Woldemari Regis §§ lii. lxxii.

[124] Fuero de Balbás (Coleccion de Privilegios, etc. Madrid, 1833, T. VI. p. 85).

[125] Prof. J. B. Thayer, in Harvard Law Review, Vol. V. p. 58.

[126] L. Scaniæ Lib. vii. c. 8.—Chart. Woldemari Regis, ann. 1163 (Du Cange s. v. _Juramentum_).

[127] Jarnsida, Thiofa-Balkr, cap. ix. X.

[128] Leges Gulathingenses, Thiofa-Bolkr, c. xiii. (Ed. Havniæ 1817, p. 547).

[129] L. Longobard. I. xxxiii. 1, 3.

[130] L. Burgund. Tit. viii.

[131] Capit. Car. Mag. I. ann. 789 c. lxii.

[132] Ibid.

[133] Capit. Ludov. Pii ann. 829 Tit. III. § vi.

[134] For. de Morlaas, Rubr. xli. art. 146-7.

[135] Que sien boos et loyaus, et que no sien enemicxs.—Fors de Béarn, Rubr. xxx.

[136] Formulary of the Papal Penitentiary, Philadelphia, 1892, p. 100.

[137] Königswarter, Études Historiques. p. 167.

[138] Nam nulli liceat, postquam manifestaverit, postea per sacramentum negare, quod non sit culpabilis, postquam ille se culpabilem assignavit. Quia multos cognovimus in regno nostro tales pravas opponentes intentiones, et hæc moverunt nos præsentem corrigere legem, et ad meliorem statum revocare.—L. Longobard. Lib. II. Tit. lv. § 8.

[139] Si quis hominem ingenuo plagiaverit et probatio certa non fuit, sicut pro occiso juratore donet. Si juratores non potuerit invenire, VIII M dinarios, qui faciunt solidos CC, culpabilis judicetur (Tit. xxxix. § 2). A similar provision—“si tamen probatio certa non fuerit”—occurs in Tit. xlii. § 5.

[140] Si quis hominem occiderit et negare voluerit, cum duodecim nominatis juret.—L. Alaman. Tit. LXXXIX.

[141] L. Alaman. Tit. XLII.

[142] Islands Landnamabok II. ix. (p. 83).

[143] For instance, in the Baioarian law—“Nec facile ad sacramenta veniatur.... In his vero causis sacramenta præstentur in quibus nullam probationem discussio judicantis invenerit” (L. Baioar. Tit. VIII. c. 16). In a Capitulary of Louis le Débonnaire—“Si hujus facti testes non habuerit cum duodecim conjuratoribus legitimis per sacramentum adfirmet” (Capit. Ludov. Pii ann. 819, § 1). In one of the Emperor Lothair—“Si testes habere non poterit, concedimus ut cum XII. juratoribus juret” (L. Longobard. Lib. I. Tit. IX. § 37). So Louis II., in 854, ordered that a man accused of harboring robbers, if taken in the act, was to be immediately punished; but if merely cited on popular rumor, he was at liberty to clear himself with twelve compurgators (Recess. Ticinen. Tit. II. cap. 3).

It was the same in subsequent periods. The Scottish law of the thirteenth century alludes to the absence of testimony as a necessary preliminary, but when an acquittal was once obtained in this manner the accused seems to have been free from all subsequent proceedings, when inconvenient witnesses might perhaps turn up—“Et si hoc modo purgatus fuerit, absolvetur a petitione Regis in posterum” (Regiam Majestatem, Lib. IV. c. 21). So, in the laws of Nieuport, granted by Philip of Alsace, Count of Flanders, in 1163 “Et si hoc scabini vel opidani non cognoverint, conquerens cum juramento querelam suam sequetur, et alter se excusabit juramento quinque hominum” (Leg. secundæ Noviportus). See also the Consuetud. Tornacens. ann. 1187, §§ ii. iii. xvi., where two conjurators release a defendant from a claim of debt unsupported by evidence. In case of assault, “si constans non fuerit,” two conjurators clear the accused; in case of wounding, six are required if the affair occurred by daylight; if at night, the cold water ordeal is prescribed (D’Achery, Spicileg. III. 551-2). The legislation of Norway and Iceland in the next century is even more positive “Iis tantum concessis quæ legum codices sanciunt, juramenta nempe purgatoria et accusatoria, ubi legitimi defuerint testes” (Jarnsida, Mannhelge, cap. xxxvii.).

On the other hand, an exception to this general principle is apparently found in a constitution of the Emperor Henry III., issued about the middle of the eleventh century “Si quem ex his dominus suus accusaverit de quacunque re, licet illi juramento se cum suis coæqualibus absolvere, exceptis tribus: hoc est si in vitam domini sui, aut in cameram ejus consilium habuisse arguitur, aut in munitiones ejus. Cæteris vero hominibus de quacunque objectione, absque advocato, cum suis coæqualibus juramento se poterit absolvere” (Goldast. Constit. Imp. I. 231).

In a constitution of Frederic II. in 1235, the oaths of six compurgators clear a man accused of having commenced hostilities without awaiting the three days term prescribed after defiance, no evidence being alluded to on either side—“et nisi violator productus super hoc vel septena manu sinodalium hominum purgaverit innocentiam suam quod non commiserat contra hoc statutum perpetuo pene subiaceat quod dicitur erenlos und rehtlos”—Nove Constitutiones Dom. Alberti, p. 12 (Weimar, 1858).

[144] S. Raymondi Summæ Lib. III. Tit. xxxi. § v. _ad calcem._

[145] Gwentian Code, Book II. chap. xxxix. § 40 (Owen I. 787). So, in disowning a child, if the reputed father were dead, the oaths of the chief of the kindred, with seven of the kinsmen, were decisive, or, in default of the chief, the oaths of fifty kinsmen (Ibid. § 41).

[146] Anomalous Laws, Book IX. chap. ii. § 9 (Ibid. II. 227).

[147] Ibid. Book VIII. chap. xi. § 31 (Ibid. II. 209).

[148] Ibid. Book IX. chap. ii. § 6 (Ibid. II. 227).

[149] Dooms of Ine, cap. liii.

[150] Leg. Wallice, Lib. II. cap. xix. § 2 (Owen II. 842).

[151] Ea autem debita de quibus non constat, super mortuum probari debent, septima manu.—Jur. Provin. Alaman. cap. vii. § 2. (Ed. Schilter.)—Sachsische Weichbild art. 67.

[152] Nove Constitutiones Dom. Alberti, p. 38.

[153] “Quod in sacramentis supradictorum testium veritas absque ullo dolo versata est.”—Leon. PP. IV. Epist. 5 (Migne, CXV. 664).

[154] Lünig Cod. Ital. Diplom. II. 1955.

[155] Maitland, Select Pleas in Manorial and other Seignorial Courts, pp. 7, 10, 18, 32, 36, 37, 47, 83, 137, 140, 141, 142, 144, 151, 157, 173.

[156] Si burgensis calumniatus præteriit ætatem pugnandi, et hoc essoniaverit in sua responsione, non pugnabit. Sed juramento duodecim talium qualis ipse fuerit, se purgabit.—L. Burgorum cap. 24, §§ 1, 2.

[157] Concil. Remens. ann. 1119 (Harduin. VI. 1986).

[158] On þone Drihten se að is clæne and unmæne þe N. swor.—Thorpe’s Ancient Laws, I. 180-1.

[159] Hoc quod appellatus juravit, verum juravit. Sic Deus, etc.—Formul. Vet. in L. Longobard (Georgisch, 1275).

[160] Per aquetz santz ver dits.—Fors de Béarn, Rubr. LI. art. 165.

[161] Du serment que Guillaume a juré, sauf serment a juré, ainsi m’aist Dieu et ses Sainctz.—Ancienne Cout. de Normandie, chap. lxxxv. (Bourdot de Richebourg, IV. 54).

[162] Nobis adhæc Deo coram periculosum esse videtur, ejus, cujus interest, jusjurandum purgatorium edendo præeunte, omnes (ab eo productos testes) iisdem ac ille conceptis verbis jurare, incerti quamvis fuerint, vera ne an falsa jurent. Nos legibus illatum volumus ut ille, cujus interest, jusjurandum conceptis verbis solum præstet, cæteri vero ejus firment juramentum adjicientes se nequid verius, Deo coram, scire, quam jurassent.—Jarnsida, Mannhelge, cap. xxxvii.—The passage is curious, as showing how little confidence was really felt in the purgation, notwithstanding the weight attached to it by law.

[163] Leges Gulathingenses, Thiofa-Bolkr, c. xiii.

[164] Credo Norigaudum istum Eduensem episcopum vera jurasse, sicut me Deus adjuvet.—Hugo. Flaviniac. Lib. II.

[165] Anomalous Laws, Book VII. chap. i. § 18 (Owen, II. 135).

[166] L. Alaman. Tit. vi.

[167] L. Longobard. Lib. II. Tit. lv. § 28.

[168] Anomalous Laws, Book IX. chap. vi. § 4; chap. xvii. § 5.—cf. Book VI. chap. i. § 50 (Owen. II. 235, 255, 113).

[169] Marculf. Lib. I. Formul. xxxviii.

[170] L. Frisionum Tit. xiv.

[171] Dooms of King Edward, cap. iii.

[172] Keyser’s Religion of the Northmen, Pennock’s Transl. p. 246.

[173] Quantum in conspectu hominum purgari poterat.—Ivon. Epist. liv.

[174] Hugo Flaviniac. Lib. II.

[175] Gratian. c. 17, Caus. II. Q. v.

[176] L. Baioar. Tit. XIV. cap. i. § 2.

[177] L. Longobard. Lib. I. Tit. ix. § 37.

[178] Institutions Judiciaires, I. 308.

[179] Ut propter suam nequitiam alii qui volunt. Dei esse non se perjurent, nec propter culpam alienam semetipsos perdant.—L. Alaman. Tit. xlii. § 1.

[180] Quod pro anima sua timendo, non præsumat sacramentalis esse.—L. Longobard. Lib. II. Tit. lv. § 14.

[181] Othlon. Vit. S. Bonif. Lib. II. c. xxi.—“Vos soli juratis, si vultis; nolo ut omnes hos congregatos perdatis.”—Boniface, however, did not weakly abandon the cause of the church. He freely invoked curses on the greedy brethren, which being fulfilled on the elder, the terror-stricken survivor gladly relinquished the dangerous inheritance.

[182] L. Salic. Tit. I. §§ 3, 4.

[183] L. Frisionum Tit. X.

[184] Capit. Pippini ann. 793 § 15.—Capit. Car. Mag. incert. anni c. x. (Martene Ampl. Collect. VII. 7).

[185] Celest. PP. III. ad Brugnam Episc. (Baluz. et Mansi, III. 382).

[186] Cod. Vatican. No. 3845, Gloss, ad L. 2 Lombard. II. 51, apud Savigny, Geschichte d. Rom. Recht. B. iv.—I owe this reference to the kindness of my friend J. G. Rosengarten, Esq.

[187] Capit. Car. Mag. ann. 794 § 7.

[188] Hugo, Flaviniac. Lib. II. ann. 1100. Norgaud, however, was reinstated next year by quietly procuring, as we have already seen, two brother prelates to take the oath with him, in the absence of his antagonists.

[189] Et si quis de quinque juvantibus defecerit, accusatus debit tres libras, et percusso decem solidos.—Leg. Secund. Noviportus (Oudegherst).

[190] Hostiensis Aureæ Summæ Lib. v. _De Purg. Canon_, § 7.—“Sicut puniretur de crimine de quo impetebatur si convinceretur considerato modo agendi, sic punietur si in purgatione deficiat.”

[191] L. Longobard. Lib. II. Tit. lv. § 34.—Qua ex re mos detestabilis in Italia, improbusque non imitandus inolevit, ut sub legum specie jurejurando acquireret, qui Deum non timendo minime formidaret perjurare.

[192] L. Henrici I. cap. lxiv. § 1. “Malorum autem infestacionibus et perjurancium conspiracione, depositum est frangens juramentum, ut magis Dei judicium ab accusatis eligatur; et unde accusatus cum una decima se purgaret per eleccionem et sortem, si ad judicium ferri calidi vadat.” This cannot be considered, however, as having abrogated it even temporarily in England, since it is contradicted by many other laws in the same code, which prescribe the use of compurgators, and we shall see hereafter how persistently its use was maintained.

[193] Romances Antiguos Españoles. Londres, 1825, T. I. pp. 246-7. Cf. Dozy, Recherches sur l’Histoire, etc. de l’Espagne, Leipzig, 1881, II. 108.

[194] Le Roux de Lincy, Chants Historiques Français, I. 15.

[195] Glanville, Lib. I. cap. ix. Also, Lib. I. c. xvi., Lib. IX. c. i., Lib. X. c. v.

[196] “In aliis enim curiis si quis aliquid dixerit unde eum pœnituerit, poterit id negare contra totam curiam tertia manu cum sacramento, id se non dixisse affirmando” (Ibid. Lib. VIII. c. ix.).—In some other systems of jurisprudence, this unsophisticated mode of beclouding justice was obtained by insisting on the employment of lawyers, whose assertions would not be binding on their clients. Thus, in the Assises de Jerusalem (Baisse Court, cap. 133): “Et por ce il deit estre lavantparlier, car se lavantparlier dit parole quil ne doie dire por celuy cui il parole, celui por qui il parle et son conceau y pueent bien amender ains que le iugement soit dit. Mais se celuy de cui est li plais diseit parole qui li deust torner a damage, il ne la peut torner arieres puis quil la dite.” The same caution is recommended in the German procedure of the fourteenth century—“verbis procuratoris non eris adstrictus, et sic vitabis damnum” (Richstich Landrecht, cap. II. Cf. Jur. Provin. Saxon. Lib. I. art. 60; Lib. II. art. 14). The same abuse existed in France, but was restricted by St. Louis, who made the assertion of the advocate binding on the principal, unless contradicted on the spot (Établissements, Liv. II. chap. xiv.).

[197] Roger de Hoveden ann. 1194.

[198] Tunc vadiabit defendens legem se duodecima manu.—Bracton. Lib. III. Tract. iii. cap. 37, § 1.—Et si ad diem legis faciendæ; defuerit aliquis de XII. vel si contra prædictos excipi possit quod non sunt idonei ad legem faciendam, eo quod villani sunt vel alias idonei minus, tunc dominus incidet in misericordiam.—Ibid. § 3. So also in Lib. V. Tract. V. cap. xiii. § 3.

[199] Pike, History of Crime in England, I. 285.

[200] Gratian, c. 17, C. 11. Q. v.—“Deinde vero purgatores super sancta Dei evangelia jurabunt quod sicut ipsi credunt verum juravit.” Cf. c. 5 Extra, V. xxxiv.

[201] Summæ Stephani Tornacensis caus. II. Q. 5 (Schulte, 1891, p. 171).

[202] C. 7, Extra, V. xxxiv.

[203] Illi qui ad purgandam alicujus infamiam inducuntur, ad solum tenentur juramento firmare quod veritatem credunt eum dicere qui purgatur.—C. 13, Extra, V. xxxiv. Innocent also endeavored to put an end to the abuse by which ecclesiastics, notoriously guilty, were able to escape the penalty due their crimes, by this easy mode of purgation.—C. 15, eod. loc.

The formula as given about 1240 by St. Ramon de Peñafort is “Nos credimus quod ipse juravit verum, vel, verum esse quod juravit.”—Raymondi Summæ Lib. III. Tit. xxxi. § 5.

[204] The rapidity with which the study of the civil law diffused itself throughout the schools and the eagerness with which it was welcomed were the subject of indignant comment by the ecclesiastics of the day. As early as 1149 we find St. Bernard regretting that the laws of Justinian were already overshadowing those of God—“Et quidem quotidie perstrepent in palatio leges, sed Justiniani, non Domini” (De Consideratione, Lib. I. cap. iv.). Even more bitter were the complaints of Giraldus Cambrensis towards the end of the century. The highest of high churchmen, in deploring the decline of learning among the prelates and clergy of his age, he attributes it to the exclusive attention bestowed on the jurisprudence of Justinian, which already offered the surest prizes to cupidity and ambition, and he quotes in support of his opinion the dictum of his teacher Mainier, a professor in the University of Paris: “Episcopus autem ille, de quo nunc ultimo locuti sumus, inter superficiales numerari potuit, cujusmodi hodie multos novimus propter leges Justinianas, quæ literaturam, urgente cupiditatis et ambitionis incommodo, adeo in multis jam suffocarunt, quod magistrum Mainerium in auditorio scholæ suæ Parisius dicentem et damna sui temporis plangentem, audivi, vaticinium illud Sibillæ vere nostris diebus esse completum, hoc scilicet ‘Venient dies, et væ illis, quibus leges obliterabunt scientiam literarum’” (Gemm. Ecclesiast. Dist. II. cap. xxxvii.). This, like all other branches of learning, was as yet to a great extent in the hands of the clergy, though already were arising the precursors of those subtle and daring civil lawyers who were destined to do such yeoman’s service in abating the pretensions of the church.

It is somewhat singular to observe that at a period when the highest offices of the law were frequently appropriated by ecclesiastics, they were not allowed to perform the functions of advocates or counsel. See Horne’s Myrror of Justice, cap. II. sect. 5. There was good reason for prohibiting them from serving as judges, as Frederic II. did in 1235—“Idem erit laicus propter sententias sanguinum quas clerico scribere non liceat, et præterea ut si dilinquid in officio suo pena debita puniatur” (Nove Constitutiones Dom. Alberti, p. 46).

[205] Actor quod adseverat, probare se non posse profitendo, reum necessitate monstrandi contrarium non adstringit: cum per rerum naturam factum negantis probatio nulla sit (Const. xxiii. C. de Probat. IV. 19).—Cum inter eum, qui factum adseverans, onis subiit probationis, et negantem numerationem, cujus naturali ratione probatio nulla est ... magna sit differentia (Const. x. C. de non numerat. IV. 30). It is a little curious to see how completely this was opposed to the principle of the early Common Law of England, by which in actions for debt “semper incumbit probatio neganti” (Fleta, Lib. II. cap. lxiii. § 11).

[206] La cosa que non es non se puede probar nin mostrar segunt natura.—Las Siete Partidas, P. III. Tit. xiv. l. 1.

[207] Though absent from the general laws of Spain, yet compurgation had been introduced as an occasional custom. We have seen it above (p. 49) in the Fuero de Balbás in 1135. The Fuero of Madrid in 1202 provides that a man suspected of homicide and other crimes, in the absence of testimony, can clear himself with six or twelve conjurators, according to the grade of the offence (Mem. de la Real. Acad. de la Historia, 1852). We shall see hereafter that it appears in the Fuero Viejo of Castile in 1356. The passage from the Romancero del Cid, quoted above, shows the hold it had on the popular imagination.

[208] Olim, II. 153, 237.

[209] Actes du Parlement de Paris, T. I. p. cccvii. (Paris, 1863).

[210] Actes du Parlement de Paris, T. I. p. 382.

[211] Statuunt ... se manu centesima nobilium se purgare, et ad huic benedicto juveni bis septem librarum milia pro sui rancoris satisfactione præsentare.—Wilelmi Egmond. Chron.

[212] Is qui reus putatur tertia manu se purgabit, inter quos sint duo qui dicentur denominati.—Du Cange s. v. _Juramentum_.

[213] Et li deffendans, sour qui on a clamet se doit deffendre par lui tierche main, se chou est hom II. hommes et lui, se chou est fame II. femmes et li à tierche.... “Tel sierment que Jehans chi jura boin sierment y jura au mien ensiant. Si m’ait Dius et chist Saint.”—Roisin, Franchises, etc. de la Ville de Lille, pp. 30, 35.

[214] Ibid. p. 51. The system was abrogated by a municipal ordinance of September, 1351, in accordance with a special ordonnance to that effect issued by King John of France in March, 1350.

The royal ordonnance declares that the oath was “en langage estraigne et de mos divers et non de legier a retenir ou prononchier,” and yet that if either party “par quelconques maniere faloit en fourme ou en langage ou que par fragilite de langhe, huirans eu, se parolle faulsist ou oubvliast, ou eslevast se main plus que li dite maniere acoustumee en requeroit ou quelle ne tenist fermement sen poch en se paulme ou ne wardast et maintenist pluiseurs autres frivoles et vaines chozes et manieres appartenans au dit sierment, selonc le loy de la dite ville, tant em parole comme en fait, il avoit du tout sa cause perdue, ne depuis nestoit rechus sur che li demanderes a claim ou complainte, ne li deffenderes a deffensce.”—Ibid. p. 390.

[215] Anc. Coutume de Normandie, chap. lxxxv. (Bourdot de Richebourg, IV. 53-4).

[216] Recherches de la France, Liv. IV. chap. iii. Concerning the date of this, see La Croix du Maine, s. v. _Estienne Pasquier_.

[217] Fors et Cost. de Béarn, Rubr. de Juramentz (Bourdot de Richebourg, IV. 1082).

[218] Lo jurament deu seguidor se fé JURAN PER aquetz sanctz bertat ditz exi que io crey.

[219] E si gelo negare e non gelo quisier probar, devel’ facer salvo con once Fijosdalgo e èl doceno, que non lo fiço (Fuero Viejo de Castiella, Lib. I. Tit. v. 1. 12). It will be observed that this is an unqualified recognition of the system of negative proofs.

[220] Du Cange, s. v. _Juramentum_.

[221] Jur. Provin. Alaman. cap. xxiv.; cccix. § 4; cccxxix. §§ 2, 3; cccxxxix. § 3 (Edit. Schilteri).

[222] Jur. Provin. Saxon. Lib. I. c. 63.

[223] Sachsische Weichbild, art. 71, 72, 86, 40, 88.

[224] Goldast. Constitt. Imp. III. 446.

[225] Meyer, Institutions Judiciaires, V. 221.

[226] Sique accusatus tanta ac tam gravi suspitione laboraret ut aliorum quoque purgatione necesse esset, in arbitratu stet judicis, si illi eam velit injungere, nec ne, qui nimirum compurgatores jurabunt, se credere quod ille illive qui se per juramentum excusarunt, recte vereque juraverint.—Constit. de Pace Publica cap. xv. § 1 (Goldast. Constitt. Imp. I. 541).

[227] Damhouder, Rerum Criminalium Praxis cap. xliv. No. 6 (Antwerp, 1601).

[228] Statut. Davidis II. cap. i. § 6.

[229] Jarnsida, Mannhelge & Thiofa-Balkr _passim_; Erfthatal cap. xxiv.; Landabrigtha-Balkr cap. xxviii.; Kaupa-Balkr cap. v., ix., etc.

[230] See Sporon & Finsen, Dissert. de Usu Juramenti juxta Leges Daniæ Antiquas, Havniae, 1815-17, P. I. pp. 160-1, P. II. pp. 206-8.

[231] Christiani V. Jur. Danic. Lib. i. c. xiv. § 8.

[232] Poteritque se tunc purgare cui crimen imponitur juramento XVIII. virorum.—Raguald. Ingermund. Leg. Suecorum Lib. i. c. xvi.

[233] Legg. Civil. Gustavi Adolphi Tit. X.

[234] Caroli XI. Judicum Regulæ, cap. xxxii.

[235] Ludewig. Reliq. MSS. T. VII. p. 401.

[236] Herb. de Fulstin Statut. Reg. Poloniæ, Samoscii, 1597, pp. 186-88, 465.

By the customs of Iglau, about the middle of the thirteenth century, a man could rebut with two conjurators a charge of assault with serious mutilation, and was subject to a fine of fourteen marks if he failed; accusations of complicity required only the oath of the accused.—Statuta Primæva Moraviæ, Brunæ, 1781, pp. 103-4.

[237] Bassani de Sacchi Jura Regni Croatiæ, Dalmatiæ et Sclavoniæ. Zagrabiæ, 1862, Pt. I. p. 182.

[238] Et sic major præsumptio vincit minorem. Si autem querens probationem habuerit, sicut instrumenta et chartas sigillatas, contra hujusmodi probationes non erit defensio per legem. Sed si instrumento contradicatur, fides instrumenti probabitur per patriam et per testes. Bracton, Lib. IV. Tract. vi. cap. 18, § 6.

The word “secta” is a troublesome one to legal antiquarians from its diverse significations. As used in the above text it means the supporters of the plaintiff’s case. Elsewhere we find it denoting the hue and cry, which all men were bound to follow; see Stubb’s Select Charters, pp. 256, 366, etc. “Facere sectam” also seems to have the sense of holding court (Ib. p. 303), whence it also derives a secondary meaning of jurisdiction (Baildon, Select Civil Pleas, I. 42).

[239] Fleta, Lib. II. c. lxiii. § 10. Sed si sectam [actor] produxerit, hoc est testimonium hominum legalium qui contractui inter eos habito interfuerint præesentes, qui a judice examinati si concordes inveniantur, tunc poterit [reus] vadiare legem suam contra petentem et contra sectam suam prolatam; ut si duos vel tres testes produxerit [actor] ad probandum, oportet quod defensio fiat per quatuor vel per sex; ita quod pro quolibet teste duos producat jurat [ores] usque ad xii.

[240] 38 Edw. III. St. I. cap. v. (Statutes at Large I. 319. Ed. 1769).

[241] 27 Eliz. cap. xix. § I.

[242] Jacob’s Review of the Statutes, 2d Ed. London, 1715, p. 532.

[243] I owe a portion of these references to a paper in the London “Jurist” for March, 1827, the writer of which instances the wager of law as an evidence of “that jealous affection and filial reverence which have converted our code into a species of museum of antiques and legal curiosities.”

[244] Wharton’s Law Lexicon, 2d ed., p. 758.

[245] I owe a transcript of these records to the kindness of the late General J. H. Lefroy, then Governor of Bermuda. The quaintness of the proceedings may justify the printing of the sentences.

Nov. Assizes, 1638.—“Arthur Thorne being presented by the minister and church wardens of Pembroke tribe [parish] upon suspition of incontinency with Elizabeth Jenour the wyfe of Mr. Anthony Jenour, was censured [sentenced] in case he could not purge himself to doe open penaunce in two churches.” He probably failed in his purgation, for Mrs. Jenour confessed her sin in open court and was referred to her minister for penance.

June Assizes, 1639. “The minister, church wardens, and sydesmen of Sandy’s Tribe doe present Mary Eldrington, the wyfe of Roger Eldrington, upon suspition of incontinency grounded on comon fame: upon which presentment she was censured to doe open penaunce in the church in case she could not purge herselfe by the oath of 3 women of credit in the Tribe.”

“Edward Bowly, presented upon suspition of incontinency with Anne, a negro woman, supposed to be the father of her bastard child, was put to his compurgators, and did thereupon purge himself, and the negro woman censured to receave 21 lashes at the whipping-post, which was executed upon her.”

“Edward Wolsey and Dorathie Penniston were presented upon common fame for suspition of incontinencie by the grand inquest, and also presented by the minister and churchwardens of Pembroke Tribe upon the like suspition, whereupon they were sentenced to doe penaunce in the church, standing in a whyte sheete during divine service, making confession of that their suspitious walking in case they could not purge themselves by their owne oathes and two sufficient compurgators.”

[246] Cooper’s Statutes at Large of South Carolina, Columbia, 1837, II. 403.

[247] Kilty’s Report on English Statutes, Annapolis, 1811, p. 140.

[248] Ego talis juro ... me firmiter credere quod talis non fuit Insabbatus, Valdensis, vel pauperum de Lugduno ... et credo firmiter eum in hoc jurasse verum.—Doctrina de modo procedendi contra Hæreticos (Martene, Thesaur. T. V. p. 1801).—This is the same as the form prescribed by the Council of Tarragona in 1242, where we learn, moreover, that the number of compurgators was prescribed by the inquisitor in each case (Aguirre, Concil. Hispan. IV. 193).

[249] Conc. Lateran. IV. can. iii.—Decret. Gregor. P. P. IX. (Harduin. VII. 163).

[250] Hartzheim Conc. Germ. III. 542-50.—Alberic. Trium Font. ann. 1233-4.—Gest. Treviror. c. 175.

[251] Jacob. Simancæ de Cathol. Instit. Tit. lvi. No. 3, 4 (Romæ, 1575).

[252] Simancæ, loc. cit. No. 31.—Villadiego, Fuero Juzgo, p. 318 _b_ (Madrid, 1600).—Both of these authorities stigmatize it as “fragilis et periculosa, cæca et fallax.”

[253] Simancæ, loc. cit. No. 12.

[254] Simancæ, loc. cit. No 17.

[255] Strype’s Ecclesiastical Memorials, I. 87.

[256] Reformator. Constant. Decretal. Lib. V. Tit. ii. cap. 1, 3 (Von der Hardt, Tom. I. P. XII. pp. 739, 742).

[257] Angeli de Clavasio Summa angelica, s. v. _Purgatio_.

[258] Baptistæ de Saulis Summa rosella, s. v. _Purgatio_.

[259] Institut. Jur. Canon. Lib. IV. Tit. ii. § 2.—Cf. Concil. Tarraconens. ann. 1591, Lib. IV. Tit. xiv. (Aguirre, VI. 322).

[260] P. Grillandi Tract. de Sortileg. Qu. 6, No. 14; Qu. 3, No. 36.—Decret. II. caus. xxx. q. 1, can. 2.—C. 7 Extra, Lib. IV. Tit. xv.

[261] Du Cange, loc. cit.

[262] Burnet, Reformation, Vol. II. p. 199 (Ed. 1681).

[263] Tit. LXXIV. of Herold’s text; Cap. Extravagant. No. XVIII. of Pardessus.

[264] L. Baioar. Tit. XVI. cap. i. § 2.

[265] Pactus pro Tenore Pacis, § 2, cf. § 5 (Baluze).

[266] Decreti Childeberti c. vii. (Baluze). This provision was not merely temporary. It is preserved in the Capitularies (Lib. VII. c. 257), whence it was carried into the Decretum of Ivo of Chartres in the twelfth century (Decr. P. xiii. c. 6; P. xvi. c. 358).

[267] Capit. Car. Mag. VI. ann. 806, c. xxiii. (Concil. Roman. Silvestri PP. I.).

[268] E li apelur jurra sur lui par VII. humes numez, sei siste main, que pur haur nel fait ne pur auter chose, si pur sun dreit nun purchacer.—Ll. Guillel. I. cap. xiv.

[269] Omnis tihla tractetur antejuramento plano vel observato.—Ll. Henrici I. Tit. lxiv. § 1. Anlejuramentum a compellante habeatur, et alter se sexto decime sue purgetur; sicut accusator precesserit.—Ibid. Tit. lxvi. § 8.

[270] Prof. J. B. Thayer in Harvard Law Review, Vol. V. pp. 47-51.

[271] C. Tribur. ann. 895 c. xxii.

[272] For de Morlaas, Rubr. xxxviii. art. 63.

[273] Bracton. Lib. IV. Tract. vi. cap. 18, § 6.

[274] Statuta Susatensia, No. 10 (Hæberlin, Analecta Medii Ævi, p. 509).—The same provision is preserved in a later recension of the laws of Soest, dating apparently from the middle of the thirteenth century (Op. cit. p. 520).

[275] Jur. Provin. Alaman. cap. cccix. § 4 (Ed. Schilter).—Jur. Provin. Saxon. Lib. III. art. 88.—Sachsische Weichb. art. 115.

[276] Jur. Provin. Alaman. cap. cccxcviii. §§ 19, 20.

[277] Du Cange _sub voce_.

[278] Legg. Scan. Provin. Lib. V. c. 57 (Ed. Thorsen, p. 140).

[279] Ideo manus libro imponimus sacro, quod audivimus (crimen rumore sparsum), at nobis ignotum est verum sit nec ne.—Jarnsida, Mannhelge, cap. xxiv.

[280] Rabanis, Revue Hist. de Droit, 1861, p. 511.

[281] Du Boys, Droit Criminel des Peuples Modernes, II. 595.

[282] Freher. de Secret. Judic. cap. xvii, § 26.

[283] Anc. Cout. de Bretagne, Tit. VIII. art. 168.

[284] Thus, as late as the thirteenth century, the municipal law of Southern Germany, in prescribing the duel for cases destitute of testimony, says with a naïve impiety: “Hoc ideo statutum est, quod causa hæc nemini cognita est quam Deo, cujus est eandem juste decidere.” Early in the sixteenth century the pious Aventinus regretfully looks back upon the time when princes and priests, assembled to witness the combat, “divinam opem implorabant, beneficia memoriter commemorabant quæ in simili negotio Deus immortalis Christus servator noster ipsis pro sua benignitate atque clementia contulisset ... comprecabantur ut summa potestas in re præsenti, pollicita re, hactenus semper factitasset, comprobaret” (Aventini Annal. Baior. Lib. IV. cap. xiv. n. 28). Even as late as 1617, August Viescher, in an elaborate treatise on the judicial duel, expressed the same reliance on the divine interposition: “Dei enim hoc judicium dicitur, soli Deo causa terminanda committitur, Deo igitur authore singulare hoc certamen suscipiendum, ut justo judicio adjutor sit, omnisque spes ad solam summæ providentiam Trinitatis referenda est” (Viescher Tract. Juris Duellici Universi, p. 109). This work is a most curious anachronism. Viescher was a learned jurisconsult who endeavored to revive the judicial duel in the seventeenth century by writing a treatise of 700 pages on its principles and practice. He exhibits the wide range of his studies by citations from no less than six hundred and seventy-one authors, and manages to convey an incredibly small amount of information on the subject. Ephraim Gerhardt, moreover, taxes him with wholesale plagiarism from Michael Beuther’s _Disputatio de duello_ (Strassburg, 1609) and with false citations of authorities.—Eph. Gerhardi Tract. de Judicio Duellico, præfat.

[285] L. Baioar. Tit. XIV. c. i. § 2.

[286] Rymer, Fœdera, V. 198-200.

[287] Ayeen Akbery, II. 324.

[288] The early edicts directed against the duel proper (Ordonn. Charles IX., an. 1566; Henri IV., an. 1602—in Fontanon I. 665) refer exclusively to the noblesse, and to those entitled to bear arms, as addicted to the practice, while the judicial combat, as we shall see, was open to all ranks, and was enforced indiscriminately upon all.

[289] Chron. Domin. de Arkel (Matthæi Analect. VIII. 296). In 1336 a judicial duel was fought in Bavaria to decide a similar question—the right of two nobles to a coat of arms.—Würdinger, Beiträge zur Geschichte des Kampfrechtes in Bayern, München, 1877, p. 14.

[290] Rymer, Fœdera, II. 226-9, 230-4, 239-40, 242-3.—Lünig. Cod. Ital. Diplom. II. 986.

[291] Ramon Muntaner, cap. lxxi. See also Pedro’s own brief account of the matter in a letter of June 20, 1283, to his nephew, the Infante Juan of Castile.—Memorial Histórico Español, 1851, T. II. p. 99.

[292] “Sub speculatoris supremi judicio terminatum.”—Rymer, Fœd. VII. 407.

[293] Du Bellay, Mémoires, Liv. III.—The letters are given by Juan de Valdés in the _Diálogo de Mercurio i Caron_ (Dos Diálogos, pp. 243, 247, 287.—Reformistas antiguos Españoles).

[294] An outlying fragment of the same belief is to be seen in the ancient Japanese practice of deciding knotty questions by the judicial duel (Griffis’s Mikado’s Empire, New York, 1876, p. 92). Even the most savage of existing races, the aborigines of Australia, have a kind of duel under certain rules by which private controversies are settled, and among the Melanesians the custom prevails, champions even being sometimes employed (Patetta, Le Ordalie, Torino, 1890, pp. 55, 60).

[295] Iliad. III. 277-323.

[296] Nicholaus Damascenus (Didot Frag. Hist. Græcor. III. 457).

[297] Liv. XXVII. 21.

[298] Senchus Mor, I. 251.

[299] Synod. S. Patricii ann. 456, c. 8.

[300] Anomalous Laws, Book XIV. chap. xiii. § 4 (Owen II. 623).

[301] Patetta, Le Ordalie, p. 156.

[302] Königswarter, op. cit. p. 224; Patetta, pp. 158 sqq.; Eph. Gerhardi Tract. Jurid. de Judic. Duellico, c. ii. § 12.

[303] Saxon. Grammat. Hist. Dan. Lib. V.

[304] Islands Landnamabok, III. vii.; V. xii. xiii. See also II. vi. and xiii.

[305] Keyser’s Religion of the Northmen, Pennock’s Translation, p. 245-7.

[306] Tacit. de Mor. Germ. X. Du Cange refers to a passage of Paterculus as proving the existence of the judicial duel among the Germans (Lib. II. cap. 118), but it seems to me only to refer to the law of the strongest.

[307] Si tamen non potuerit adprobare ... et postea, si ausus fuerit, pugnet.—Leyden MS.—Capit. Extravagant. No. xxviii. of Pardessus.

[308] Gregor. Turon. Hist. Franc. Lib. VII. c. xiv.; Lib. X. c. x.—Aimoini Lib. IV. c. ii.

[309] Aimoini Lib. IV. cap. X.

[310] Quia absurdum et impossible videtur esse ut tam grandis causa sub uno scuto per pugnam dirimatur.—L. Longobard. Lib. II. Tit. lv. §§ 1, 2, 3.

[311] L. Longobard. Lib. II. Tit. xxxv. §§ 4, 5.

[312] Gravis causa nobis esse comparuit, ut sub uno scuto, per unam pugnam, omnem suam substantiam homo amittat.... Quia incerti sumus de judicio Dei, et multos audivimus per pugnam sine justitia causam suam perdere. Sed propter consuetudinem gentis nostræ Longobardorum legem impiam vetare non possumus (L. Longobard. Lib. I. Tit. ix. § 23). Muratori states that the older MSS. read “legem istam,” in place of “impiam,” as given in the printed texts, which would somewhat weaken the force of Liutprand’s condemnation.

[313] L. Anglior. et Werinor. Tit. I. cap. 3; Tit. XV.—L. Saxon. Tit. XV.—L. Frision. Tit. V. c. i.; Tit. XI. c. 3.

[314] In Horne’s Myrror of Justice (cap. II. sect. 13), a work which is supposed to date from the reign of Edward II., there is a form of appeal of treachery “qui fuit trové en vielx rosles del temps du Roy Alfred,” in which the appellant offers to prove the truth of his charge with his body; but no confidence can be placed in the accuracy of the old lawyer. Some antiquarians have been inclined to assume that the duel was practised among the Anglo-Saxons, but the statement in the text is confirmed by the authority of Mr. Pike (Hist. of Crime in England, I. 448), whose exhaustive researches into the original sources of English jurisprudence render his decision virtually final.

In the Saga of Olaf Tryggvesson it is related that he was chosen by an English queen named Gyda for her husband, to the great displeasure of Alfin a previous pretender to her hand, who challenged him thereupon, because “It was then the custom in England, if two strove for anything, to settle the matter by single combat” (Laing’s Heimskringla, I. 400). Snorro Sturleson, however, can hardly be regarded as of much authority on a point like this; and as Gyda is represented as daughter of a king of Dublin, the incident, if it occurred at all, may have taken place in Ireland.

[315] A charter issued by William, which appears to date early in his reign, gives the widest latitude to the duel both for his French and Saxon subjects (L. Guillelmi Conquest. II. §§ 1, 2, 3. Thorpe, I. 488). Another law, however, enabled a Norman defendant to decline the combat when a Saxon was appellant. “Si Francigena appellaverit Anglum ... Anglus se defendat per quod melius voluerit, aut judicio ferri, aut duello.... Si autem Anglus Francigenam appellaverit et probare voluerit, judicio aut duello, volo tunc Francigenam purgare se sacramento non fracto” (Ibid. III. § 12. Thorpe, I. 493). Such immunity seems a singular privilege for the generous Norman blood.

[316] Cassiodor. Variar. Lib. III. Epist. xxiii., xxiv.

[317] An Epistle from Theodoric to the Gaulish provinces, which he had just added to his empire, congratulates them on their return to Roman laws and usages, which he orders them to adopt without delay. Its whole tenor shows his thorough appreciation of the superiority of the Imperial codes to the customs of the barbarians, and his anxiety for settled principles of jurisprudence (Cassiodor. Variar. Lib. III. Epist. xvii.).

[318] Ermold. Nigell. de Reb. Gest. Ludov. Pii Lib. III.—Astron. Vit. Ludov. Pii cap. xxxiii.—Marca Hispanica, Lib. III. c. 21.

[319] Even as late as the middle of the thirteenth century St. Ramon de Peñafort thus defines it—“Duellum est singularis pugna inter aliquos ad probationem veritatis, ita videlicet ut qui vicerit probasse intelligitur; et dicitur duellum quasi duorum bellum. Dicitur etiam vulgo in pluribus partibus judicium, eo quod ibi Dei judicium expectatur.”—S. Raymondi Summæ Lib. II. Tit. iii.

[320] L. Burgund. Tit. xlv.—The remedy, however, would seem to have proved insufficient, for a subsequent enactment provides an enormous fine (300 solidi) to be levied on the witnesses of a losing party, by way of making them share in the punishment, “Quo facilius in posterum ne quis audeat propria pravitate mentire.”—L. Burgund. Tit. lxxx. § 2. The position of a witness in those unceremonious days was indeed an unenviable one.

[321] Capit. Car. Mag. ex Lege Longobard. c. xxxiv. (Baluze).

[322] L. Longobard. Lib. II. Tit. iv. $ 34.

[323] Lib. adversus Legem Gundobadi cap. x.

[324] L. Frision. Tit. xiv. § 4.

[325] Goldast. Antiq. Alaman. chart. lxxxv.

[326] L. Baioar. Tit. XVI. cap. i. § 2.

[327] Capit. Ludov. Pii ann. 819, cap. xv.

[328] L. Baioar. Tit. XVI. c. 5.

[329] Beaumanoir, Coutumes du Beauvoisis, chap. lxi. § 58.—In the contemporary Italian law, however, there was some limitation on the facility of challenging witnesses—“Ita demum inter contrarios testes fit pugna, si ipsi inter se imponant nam pars testibus non potest pugnam imponere nisi velint.”—Odofredi Summa de Pugna, c. i. (Patetta, p. 483).

[330] Lib. Pract. de Consuetud. Remens. §§ 14, 40 (Archives Législat. de Reims, Pt. I. pp. 37, 40).

[331] Bracton de Legibus Angl. Lib. III. Tract. II. cap. xxxvii. § 5.—Fleta, Lib. I. cap. xxii.

[332] Thus in a case in 1220 involving a stolen mare, the accused gave a warrantor, and on the accuser challenging him to battle he gave a second warrantor. On investigation he was found to have received five marks for the service with a promise of five more, and he was mercifully treated by being condemned only to the loss of a foot—“Sciendum quod misericorditer agitur cum eo per consilium domini regis cum majorem pœnam de jure demeruisset.”—Maitland, Select Pleas of the Crown, I. 127.

[333] Beaumanoir, chap. vi. § 16.

[334] Beaumanoir, ch. xxxix. §§ 30, 31, 66.—Assises de Jerusalem, cap. 169. A somewhat similar principle is in force in the modern jurisprudence of China. Women, persons over eighty or under ten years of age, and cripples who have lost an eye or a limb are entitled to buy themselves off from punishment, except in a few cases of aggravated crime. They are, therefore, not allowed to appear as accusers, because they are enabled by this privilege to escape the penalties of false witness.—Staunton, Penal Code of China, Sects. 20-22, and 339. In the ancient Brahmanic law also there is a long enumeration of persons who are not receivable as witnesses, including women, children, and men over eighty years of age. In this, however, the exclusion of women would appear to be because they were presumably under tutelage.—Institutes of Vishnu, VIII. 2.

The exclusion of women as witnesses during the mediæval period was also one of the numerous disabilities by which the Church expressed its contempt for the sex which had tempted Adam to his fall. As early as the fourth century Hilary the Deacon, in a tract which long passed current under the name of St. Augustin, says: “Nec docere enim potest, nec testis esse, neque fidem dicere, neque judicare” (Hilari Diac. Quæstt. ex Vet. Testamento, c. xlv.—Migne, T. XXX. p. 2244). And this was carried through Ivo of Chartres (Decreti, P. VIII. c. 85) into the body of the canon law (Gratiani Decr. Caus. XXXIII. Q. v. cap. 17).

[335] The earliest of these charters is a grant from Louis le Gros in 1109 to the serfs of the church of Paris, confirmed by Pope Pascal II. in 1113 (Baluz. et Mansi III. 12, 62). D’Achery (Spicileg. III. 481) gives another from the same monarch in 1128 to the church of Chartres.

[336] Beaumanoir, chap. lxi. § 59.

[337] Ibid. chap. lxi. § 57.

[338] Ibid. chap. xl. § 21.

[339] Jur. Provin. Alaman. cap. lxviii. § 6.

[340] “Curia ... tenetur tamen judicium suum tueri per duellum.... Sed utrum curia ipsa teneatur per aliquem de curia se defendere, vel per alium extraneum hoc fieri possit, quero” (De Leg. Angliæ Lib. VIII. cap. ix.). The result of a reversal of judgment must probably have been a heavy fine and deprivation of the judicial function, such being the penalty provided for injustice in the laws of Henry I.—“Qui injuste judicabit, cxx sol. reus sit et dignitatem judicandi perdat” (L. Henrici I. Tit. xiii. § 4)—which accords nearly with the French practice in the time of Beaumanoir.

[341] Cited by Marnier in his edition of Pierre de Fontaines.

[342] Car poi profiteroient les costumes el païs, s’il s’en covenoit combatre; ne dépecier ne les puet-om par bataille.—Édition Marnier, chap. XXII. Tit. xxxii.

[343] Chap. XXII. Tit. i. vi. viii. x. xxvii. xxxi.—“Et certes en fausement ne gist ne vie ne menbre de cels qui sont fausé, en quelconques point que li fausemenz soit faiz, et quele que la querele soit” (Ibid. Tit. xix.). If the judge was accused of bribery, however, and was defeated, he was liable to confiscation and banishment (Tit. xxvi.). The increasing severity meted out to careless, ignorant, or corrupt judges manifests the powerful influence of the Roman law, which, aided by the active efforts of legists, was infiltrating the customary jurisprudence and altering its character everywhere. Thus de Fontaines quotes with approbation the Code, _De pœna judicis_ (Lib. VII. Tit. xlix. l. 1) as a thing more to be desired than expected, while in Beaumanoir we already find its provisions rather exceeded than otherwise.

[344] De Fontaines, chap. XXII. Tit. iii.

[345] Ibid. chap. XXII. Tit. xxiii.—Et ce fu li premiers dont je oïsse onques parler qui fust rapelez en Vermendois sanz bataille.

[346] Coutumes du Beauvoisis, chap. lxi. §§ 36, 45, 47, 50, 62.—It should be borne in mind, however, that Beaumanoir was a royal bailli, and the difference between the “assise de bailli” and the “assises de chevaliers” is well pointed out by Beugnot (Les Olim, T. II. pp. xxx. xxxi.). Beaumanoir in many cases evidently describes the law as he would wish it to be.

[347] Et pour ce ne l’en puët fausser, car l’en ne trouveroit mie qui droit en feist car li rois ne tient de nului fors de Dieu et de luy.—Établissements, Liv. I. chap. lxxviii.

[348] Conseil, ch. XXII. tit. xxi.

[349] Si contingat ut de justitia sententiæ pugnandum sit, illa pugna debet institui coram rege (Jur. Provin. Alaman. cap. xcix. § 5—Ed. Schilt.). In a French version of this code, made probably towards the close of the fourteenth century, the purport of this passage is entirely changed. “De chascun iugemant ne puet lan trover leaul ne certain consoil si bien come per le consoil de sages de la cort le roi.”—Miroir de Souabe, P. I. c. cxiii. (Ed. Matile, Neufchatel, 1843). We may hence conclude that by this period the custom of armed appeal was disused, and the extension of the royal jurisdiction was established.

[350] Jur. Provin. Saxon. I. 18; II. 12.—This has been questioned by modern critics, but there seems to be no good reason for doubting its authority. The whole formula for the proceeding is given in the Richstich Landrecht (cap. 41), a manual of procedure of the fourteenth century, adapted to the Saxon code.

[351] Richstich Lehnrecht, cap. xxvii.

[352] Carol. Mag. Chart. Divisionis ann. 806 cap. xiv.

[353] Liutprandi Antapodos, Lib. III. cap. 46.

[354] De Pressuris Eccles. Pt. II. This was written about 945.

[355] Dithmari Chron. Lib. II. ann. 950.

[356] Widukind. Rer. Saxon. Lib. II. cap. x.—The honest chronicler considers that it would have been discourteous to the nobility to treat questions relating to them in a plebeian manner. “Rex autem meliori consilio usus, noluit viros nobiles ac senes populi inhoneste tractari, sed magis rem inter gladiatores discerni jussit.” In both these cases Otho may be said to have had ancient custom in his favor. See L. Longobard. Lib. I. Tit. xii. § 2.—L. Alamann. cap. LVI., LXXXIV.; Addit. cap. XXII.

[357] Liutprandi Hist. Otton. cap. vii.

[358] Liutprandi Legat. cap. vi.

[359] Benedict. Abbat. Gesta Henrici II. p. 139 (M. R. Series).

[360] Lambert. Hersfeld. ann. 1056.

[361] Conquest. Ludov. in Synod. Ingilheim. ann. 948.

[362] S. Mathild. Regin. Vit. c. I.

[363] Wipponis vit. Chunradi Salici.

[364] “Nos belli dono ditat rex maximus Otto.”

[365] L. Longobard. Lib. II. Tit. lv. § 38.

[366] Ibid. § 34.

[367] Si non audeat, res suæ infiscentur.—Convent. Papiens. ann. 971.

[368] Qui vero infra treugam, post datum osculum pacis, alium hominem interfecerit, et negare voluerit, pugnam pro se faciat.—L. Longobard. Lib. I. Tit ix. § 38.

[369] Roderici Toletani de Reb. Hispan. VI. xxvi. This story has been called in question by orthodox writers for the reason that Archbishop Roderic, who flourished in the middle of the thirteenth century, is the only authority for it, but there is nothing in the manners of the age to render it incredible, and he mentions that the champion of the Mozarabic rite came from Matanza near the Pisuerga, and that his family still existed.

In 1121, when the Queen-regent Urraca was at Compostella, one of her courtiers informed a gentleman of the Archbishop Diego Gelmirez, that she was plotting to seize him, whereupon he surrounded himself with a guard. This attracted attention and led to discussion in which the archbishop’s retainer gave the name of his informant. The latter denied the statement and Urraca, as a matter of course, ordered the duel between them, in which her courtier was defeated and was punished with blinding.—Historia Compostellana, Lib. II. c. xxix. (Florez, España Sagrada, T. XX. p. 312).

[370] Lambert. Hersfeld. ann. 1070, 1073, 1074.—Conrad. Ursperg. ann. 1071.—Bruno de Bello Saxonico.

[371] Conrad. Ursperg. ann. 1175.

[372] Dithmari Chron. Lib. V.

[373] From the time of Henry I., the office of king’s champion was one of honor and dignity. See Spelman’s Glossary.

[374] Constit. Frid. II. ann. 1245 cap. 9 (Goldast. Const. Imp. I. 303).

[375] For de Morlaas, Rubr. xxvi.

[376] Dithmari Chron. Lib. VII. c. 36, 37.—“Ibi tunc multi latrones a gladiatoribus in singulari certamine devicti suspendio perierunt.”

[377] Bracton. Lib. III. Tract. ii. cap. 37, § 5.

[378] Bracton. Lib. III. Tract. ii. cap. 33, § 2; 34, § 2.

[379] Dreyer, Anmerckung von den ehemaligen Quellgesetzen, p. 156.

[380] Guibert. Noviogent. de Vita sua, Lib. III. cap. xvi.—Hermann. de Mirac. S. Mariæ Laudun. Lib. III. cap. 28.—Forsitan, ut multi putarunt, pro fidei violatæ reatu, qua promiserat fidem Anselmo, quod eum non detegeret.

[381] Und diser vor Got schuldig, und vor den luten nit (Jur. Provin. Alamann. cap. ccxix. § 8). This is a provision for cases in which a thief accuses a receiver of having suggested and assisted in the crime. The parties are made to fight, when, if the receiver is worsted, both are hanged; if the thief, he alone, and the receiver escapes though criminal. The French version enlarges somewhat on the principle involved: “Se il puet vancre lautre il est quites et li autre sera panduz, et sera an colpe anver lo munde et anver dex andui: ce avient a assez de genz, que aucons sunt an colpe anver dex et ne mie anver le seigle” (Miroir de Souabe, P. II. c. vi.).

[382] Innoc. PP. III. Regest. VI. 26 (c. 2 Extra, V. 35)—“Duellum in quo aliis peccatis suis præpedientibus, ceciderunt.”

[383] Chron. Jocelini de Brakelonda (Ed. Camden Soc. pp. 50-2).

[384] Isdem quoque Milo ... monomachi certaturus pugna, attribuit sancto Petro terram quam habebat in Luco, prope atrium ecclesiæ, quo sibi adjutor in disposito bello existerit.—Chron. Besuense, Chart. de Luco.

[385] Cæsar. Heisterbach. Dial. Mirac. Dist. III. c. xviii.

[386] Ibid. Dist. IX. c. xlviii.

[387] Neilson’s Trial by Combat, p. 152.

[388] Odofredi Summa de Pugna (Patetta, p. 487).—The oath prescribed in the Ordonnance of Philippe le Bel in 1306 is very elaborate—“Par les seremens que j’ay fais je n’entens pourter sur moy ne sur mon cheval paroles, pierres, herbes, charmes, charroiz, ne conjurations, invocations d’ennemis [demons] ne nulle autre chose ou j’aye esperance d’avoir ayde ne à luy nuire. Ne n’ay recours fors que à Dieu et à mon bon droit, par mon corps, par mon cheval et par mes armes. Et sur ce je baise ceste vraye croix et les saincts evangiles, et me tais.”—Isambert, Anc. Lois Françaises, II. 843.

[389] Stow’s Annals, ann. 1571 (Ed. 1615, p. 669).

[390] Ll. Frision. Tit. IX. § 3.

[391] Coutumes du Beauvoisis, chap. lxi. § 2; chap. xliii. § 6.

[392] Ibid. chap. lxi. § 2; chap. xxxix. § 12.

[393] Coutumes du Beauvoisis, chap. lxiii. §§ 1, 2, 10.

[394] Twenty-one years is the age mentioned by St. Louis as that at which a man was liable to be called upon to fight.—Établissements, Liv. I. chap. lxxiii., cxlii.

[395] Coutumes du Beauvoisis, chap. lxiii. §§ 11, 13, 18. The denier was the twelfth part of the solidus or sou.

[396] Établissements, Liv. I. chap. clxvii.

[397] In contemporary Italy the great jurist Roffredo gives a long enumeration of the cases in which the duel is admitted covering nearly the whole of the more serious criminal actions and a number of civil suits.—Odofredi Summa de Pugna (Patetta, pp. 480-4).

[398] Jur. Provin. Alaman. cap. clxvi. §§ 13, 27; cap. clxxvii. (Ed. Schilt.).—Jur. Prov. Saxon. Lib. I. clxviii.

[399] This rule was strictly laid down as early as the time of Frederic Barbarossa.—Feudor. Lib. II. Tit. xxvii. § 3.

[400] Jur. Provin. Alaman. cap. ccclxxxvi. § 2 (Ed. Schilteri).—Jur. Provin. Saxon. Lib. I. c. lxiii.—Sachsische Weichbild, xxxv. 6.

[401] Jur. Provin. Alaman. cap. ccxcii. § 2.—Jur. Provin. Saxon. Lib. III. c. xxvi. xxxiii.

[402] Sed scias si de perpetrato homicidio agitur, probationem sine duello non procedere.—Richstich Landrecht, cap. xlix.

[403] Jur. Provin. Alaman. cap. ccclxxxvi. §§ 28, 29 (Ed. Schilteri).—Jur. Prov. Saxon. Lib. I. art. 64.—Sachsische Weichbild, art. lxxxvii. lxxxviii.

[404] Sachsische Weichbild, lxxxi. If he accused more than the number of his wounds, they could defend themselves with six compurgators.

[405] Jur. Provin. Alaman. cap. clxxii. § 20 (Ed Senckenberg).

[406] Hinc pervenit dispositio de duello. Quod enim homines non vident Deo nihilominus notum est optime, unde in Deo confidere possumus, eum duellum secundum jus diremturum.—Jur. Provin. Alaman. cap. clxviii. § 19 (Ed. Senckenberg).

In a formula of application for the duel, given by Hermann de Bare (De Formandis Libellis, 1535), there is no allusion to defect of evidence; it is a simple assertion of the guilt of the other side with a demand for the duel in case it is desired.—“Domine Judex, etc. Ego Petrus, etc. Quod Martinus hic præsens est falsus et proditor, qui perditionaliter rapuit mihi quendam equum pili mauri, stellatum in fronte, quod si ipse confiteatur peto ipsum condemnari super prædicta rapina ut raptorem. Si autem hoc neget ego per pugnam armis paribus sumtis a me et ab eo faciam eum confiteri palam per os suum in campo nobis per vos assignando, vel reddam eum victum vel mortuum in dicto campo. Et super dicta pugna pignus meum vel chyrothecas meas hic in medio in præsentia vestra offero et reddo, et promitto me juraturum in introitu campi per vos nobis ad certamen seu ad dictam pugnam assignandi quod ego non habeo herbas nec breves conjuratorias vel alia quæ maleficia vel fascinationes pariant vel parturiant quoquo modo. Et quod tunc Martinus juret similiter illud. Item et peto per vos Dominum judicem si Martinus prædictam rapinam neget declarari et judicari pugnam posse et debere esse et fieri ex prædicta causa inter me et eum et ipsum sententialiter condemnari ad subeundam pugnam mecum ex prædicta causa ut super prædicta rapina possit per pugnam veritas inveniri.”—Eph. Gerhardi Tract. Jurid. de Judicio duellico, cap. I, § 5 (Francof. 1735).

[407] Assises d’Antioche, Haute Cour, ch. ix. xi. xii; Assises des Bourgeois, ch. vi. vii. (Venise, 1876). This code, of which the existence has long been suspected, has recently been discovered in an Armenian version made by Sempad, the Constable of Armenia Minor, in 1265, for the use of his fellow countrymen. It has been published, with a French translation, by the Mehkitarist Society of St. Lazarus, and gives us the customary law of the Crusaders in an earlier form than the current texts of the Assises de Jerusalem.

[408] Bracton. Lib. III. Tract. ii. cap. 18.—Fleta Lib. I. cap. xxxi. §§ 2, 3.

[409] Bracton. Lib. III. Tract. ii. cap. 23, § 1.

[410] Si autem uterque defaltam fecerit, et testatum sit quod concordati fuerunt, uterque capiatur, et ipsi et plegii sui in misericordia.—Ibid.

The custom with regard to this varied greatly according to local usage. Thus, a charter of the Count of Forez in 1270 concedes the right of avoiding battle, even at the last moment, by satisfying the adversary, and paying a fine of sixty sols.—Chart. Raynaldi Com. Forens. c. 4 (Bernard, Hist. du Forez, T. I. Preuves, p. 35). According to the customs of Lorris, in 1155, if a composition was effected after battle had been gaged and before security was given, each party paid a fine of two sous and a half. If after security was pledged, the fine was increased to seven sous and a half.—Chart. Ludov. Junior. ann. 1155, cap. xiv. (Isambert, Anciennes Lois Françaises, I. 155).

[411] Fleta Lib. II. cap. xxi. § 2.

[412] Bracton. Lib. III. Tract. ii. cap. 24 § 4.—“Hujusmodi vero dentes multum adjuvant ad devincendum.”—Olivier de la Marche tells us (_Traités sur le Duel_, communicated to me by George Neilson, Esq.) that if the defendant had lost an eye the appellant must have one correspondingly bandaged. This device can scarce have been known in England, else it would have deprived Sir William Dalzell of the £200 forfeit adjudged to him by Richard II. when Sir Piers Courtenay refused to submit to the loss of an eye, to counterbalance that which Sir William had lost at Otterburn (Neilson, Trial by Combat, p. 237).

[413] Glanvil. Lib. XIV. cap. i.—Bracton. Lib. III. Tract. ii. cap. 3 § 1.

[414] Feudor. Lib. II. Tit. xxxix.

[415] Neilson, Trial by Combat, p. 128.

[416] For de Morlaas, Rubr. xxxviii. xxxix.

[417] Marca, Hist. de Béarn. p. 293 (Mazure et Hatoulet).

[418] For de Morlaas, Rubr. iv.

[419] De Lagrèze, Hist. du Droit dans les Pyrénées, Paris, 1867, p. 68.

[420] Libell. Catalan. MS. (Du Cange).

[421] Meo arbitrio determinabo duellum, vel judicium judicabo.—Lib. Juris Civil. Veronæ, cap. 78 (p. 63).

[422] Statut. Montispess. ann. 1204 (Du Cange).

[423] Établissements de Normandie, _passim_ (Édition Marnier).

[424] Bracton. Lib. III. Tract. ii. cap. 19 § 6, cf. cap. 23 § 2.

[425] Ibid. cap. 20 § 5. Cf. Maitland, Select Pleas of the Crown, Vol. i. p. 43.

[426] Maitland, p. 48—“Utrum verum sit appellum vel athia” (hate).

[427] Würdinger, Beiträge zur Geschichte des Kampfrechtes in Bayern, p. 7.

[428] L. Anglior. et. Werinor. Tit. XV. The variations in the coinage are so numerous and uncertain, that to express the values of the solidus or sou, at the different periods and among the different races enumerated, is virtually impossible. In general terms, it may be remarked that the Carlovingian solidus was the twentieth part of a pound of silver, and according to the researches of Guérard was equivalent in purchasing power to about thirty-six francs of modern money. The marc was half a pound of silver.

[429] L. Baioar. Tit. VIII. cap. ii. § 5; cap. iii.

[430] L. Longobard, Lib. ii. cap. lv. § 37.

[431] L. Henrici I. cap. 59.

[432] Isambert, Anciennes Lois Françaises, I. 162. This occurs in an edict abolishing sundry vicious customs of the town of Orleans. It was probably merely a local regulation, though it has been frequently cited as a general law.

[433] Livres de Jostice et de Plet, Liv. XIX. Tit. xvii. § 3, Tit. xxii. § 4, Tit. xxxviii. § 3. See also a coutumier of Anjou of the same period (Anciens Usages d’Anjou, § 32—Marnier, Paris, 1853).

The “Livre de Jostice et de Plet” was the production of an Orléannais, which may account for his affixing the limit prescribed by the edict of Louis le Jeune. The matter was evidently regulated by local custom, since, as we have already seen, his contemporary, Beaumanoir (cap. lxiii. § 11), names twelve deniers, or one sou, as the minimum.

[434] Cod. Leg. Norman. P. II. cap. xxi. § 7 (Ludewig, Reliq. MSS. VII. 307). The judgment of God was frequently styled _Lex apparens_ or _paribilis_.

[435] Anc. Coutum. de Normandie, cap. 87 (Bourdot de Richebourg, IV. 55).

[436] Assises de Jerusalem, cap. 149.—Assises d’Antioche, Haute Cour. ch. ix.; Assises des Bourgeois, ch. vi.

[437] Laws of Huescar, by Don Jayme I. (Du Cange, s. v. _Torna_).

[438] L. Longobard. Lib. I. Tit. XXV. § 49.

[439] Ibid. Lib. I. Tit. IX. § 38.

[440] L. Frision. Tit. XI. cap. iii.

[441] Coutumes du Beauvoisis, cap. lxiii. § 1.—The consent of the master was necessary to authorize the risk of loss which he incurred by his serf venturing to engage in the duel. Thus, in a curious case which occurred in 1293, “idem Droetus corpus suum ad duellum in quo perire posset obligare non poterat sine nostra licentia speciali.”—Actes du Parlement de Paris, I. 446.

[442] Livres de Jostice et de Plet, Liv. XIX. Tit. 13.—Tabul. Vindocinens. cap. 159 (Du Cange, s. v. _adramire_).

[443] Assises de l’Echiquier de Normandie, p. 174 (Marnier).

[444] Laurière, Table Chron. des Ordonnances, p. 105.

[445] Beaumanoir, op. cit. cap. lxi. §§ 9, 10.—Établissements de S. Louis, Liv. I. chap. lxxxii.

[446] Beaumanoir, cap. lxiv. § 3.

[447] Conseil, ch. XXI. Tit. xiv.

[448] Actes du Parlement de Paris, T. I. No. 2269 A. p. 217.

[449] Jur. Provin. Saxon. Lib. I. c. 50, 62. Lib. III. c. 29, 65.—Sachsische Weichbild xxxiii. xxxv. Jur. Provin. Alamann. cap. ccclxxxv. §§ 14, 15 (Ed. Schilteri). According to some MSS. of the latter, however, this privilege of declining the challenge of an inferior was not allowed in cases of homicide.—“Ibi enim corpus corpori opponitur”—cap. liii. § 4 (Ed. Senckenberg). On the other hand, a constitution of Frederic Barbarossa, issued in 1168 and quoted above, forbids the duel in capital cases unless the adversaries are of equal birth.

Tallhöfer’s Kamp-recht lays down the rule unconditionally—“Item ist das ain man kempflich angesprochen wirt von ainem der nit als gut is als er, dem mag er mit recht ussgan ob er wil ... sprict aber der edler den mindern an zu kempfen so mag der der minder nich absyn.”—Dreyer, _op. cit._ p. 166.

[450] Jur. Prov. Alamann. cap. cclviii. § 20. (Ed. Schilter.)—We have already seen that the converse of this rule was introduced in England, as regards questions between Frenchmen and Englishmen, by William the Conqueror.

[451] Quia surien et greci in omnibus suis causis, præter quam in criminalibus excusantur a duello.—Assises de Jerusalem, Baisse Court, cap. 269.

[452] Laws of Huescar, ann. 1247 (Du Cange s. v. _Torna_).

[453] Las Siete Partidas, P. VII. Tit. iii. l. 3.

[454] Anomalous Laws, Book XIV. chap. xiv. § 1 (Owen II. 625).

[455] Galberti Vit. Caroli Boni, cap. 2, n. 12.

[456] Jur. Provin. Saxon. Lib. I. art. 48.

[457] Assises de Jerusalem, cap. 266, 267.

[458] Jur. Provin. Alamann. cap. lx. § 5.

[459] Jur. Provin. Saxon. Lib. I. c. 42, 43.

[460] Belitz de Duellis Germanorum, p. 9 (Vitembergæ, 1717).

[461] Jur. Provin. Alamann. cap. ccxxix. § 2. This chapter is omitted in the French version of the Speculum Suevicum.

[462] Ephr. Gerhardi Tract. Jurid. de Judic. Duellico, cap. iii. § 7, et Mantissa.—Dreyer, Anmerckung von den Quellgesetzen, p. 160.—Meyer, Der Gerichtliche Zweikampf, 1873. Gerhardt gives from a MS. of the fifteenth century in the Grand-ducal Library of Saxe-Gotha a rude representation of the first stage of one of these combats, which is here reduced in facsimile. A MS. at Wolfenbüttel has a miniature virtually the same. In another representation of these combats, the antagonists are furnished with curved knives (Würdinger, Beiträge, p. 18).

[Illustration: Two men fighting, one with club the other with ball on chain.]

In many places, however, crimes which a man was forced to disprove by combat were subject to the ordeal of hot iron or water when the accused was a woman. Thus, by the Spanish law of the thirteenth century, “Muger ... salvese por fierro caliente; e si varon fuere legador ... salvese por lid”—Fuero de Baeça (Villadiego, Fuero Juzgo fol. 317^a).

[463] Patetta, Le Ordalie, p. 159.

[464] Capit. Ludov. Pii I. ann. 819, cap. X.

[465] Ughelli, T. II. p. 122 (Du Cange).

[466] Addunt insuper, quoniam si aliquis militum sacerdotes Dei in crimine pulsaverit per pugnam sive singulari certamine esse decernendum.—De Pressuris Eccles.

[467] Muratori Script. Rer. Ital. II. II. 499, 505.

[468] Clericus ... si duellum sine episcopi licentia susceperit ... aut assultum fecerit, episcopis per pecuniam emendetur.—Orderic. Vital. P. II. Lib. V. c. 5.

[469] Goffrid. Vindocinens. Lib. III. Epist. 39.

[470] Du Cange.

[471] Ut clerici non pugnent in duello, nec pro se pugiles introducent.—Chron. S. Ægid. in Brunswig.—C. 1. Extra, Lib. V. Tit. xiv.

[472] C. 1. Extra, Lib. I. Tit. xx.

[473] C. 2. Extra, Lib. V. Tit. xiv.

[474] Council. Lateran. IV. can. 18.

[475] C. 22. Decret. caus. II. q. v.—Nicolai PP. I Epist. 148.

[476] Atton. Vercell. De Pressuris Eccles. Pt. I.

[477] Chart. S. Stephani (Batthyani Legg. Eccles. Hung. T. I. p. 384).

[478] Chron. Piscariens. Lib. II. (D’Achery, II. 951).

[479] Cartulaire de l’Église de Paris, I. 378.

[480] The charter recording the suit and its results is given by Baluze and Mansi, Miscell. III. 59.

[481] Ibid. p. 134.

[482] C. 1 Extra, Lib. V. Tit. xxxv.

[483] Du Boys, Droit Criminel des Peuples Modernes, II. 187.

[484] Matt. Paris Hist. Angl. ann. 1176 (Ed. 1644, p. 92).

[485] Neilson, Trial by Combat, pp. 122-7.

[486] Actes du Parlement de Paris, T. I. p. cccvii.

[487] Contraria consuetudine non obstante.—Cart. de l’Église de Paris, II. 393-4.

[488] Archives Administratives de Reims, T. I. p. 733.

[489] Berger, Registres d’Innocent IV. n. 6184 (T. III. p. 148).

[490] Harduin. Concil. VII. 384.

[491] Compilat. V. Lib. V. Tit. vii. (Ed. Friedberg, p. 184). “Rem hactenus inauditam et tam juri scripto quam æquitati contrariam.”

[492] Fit pugna si ecclesia contra ecclesiam habet controversiam vel contra privatum et instrumentum dicatur falsum.—Odofredi Summa de Pugna (Patetta, p. 483).

[493] Joh. Friburgens. Summæ Confessorum Lib. II. Tit. iii. Q. 3, 5, 6.—Cf. Baptist. de Saulis Summam Rosellam s. v. _Dispensatio_, § 7.

[494] Proost, Législation des Jugements de Dieu, p. 19.

[495] It is not easy to understand the remark of Olivier de la Marche, in the latter half of the fifteenth century (Traités du Duel Judiciaire, p. 44, communicated to me by George Neilson, Esq.), warning judges that they cannot condemn clerks to the duel except in cases of _lèse majesté_ and those affecting the faith. At that time the faith was exclusively in the hands of the Inquisition, and the canons admit of no exception to clerical immunity in cases of treason. In both matters torture had long before proved itself vastly more efficient than the clumsy and doubtful ordeals.

[496] Du Cange, s. v. _Bellum_.

[497] Muratori, Antiq. Ital. Dissert. 39.—Among various other examples given by the same author is one of the year 1010, in which the court of the bishop of Aretino grants the combat to decide a case between a monastery and a layman.

[498] Neilson, Trial by Combat, pp. 76, 81.

[499] Ivon. Epist. cxlviii.

[500] Ivon. Epist. ccxlvii.

[501] Pet. Cantor. Verb. Abbreviat. cap. lxxviii.

[502] Migne’s Patrologia, T. 188, p. 1287.

[503] Baildon, Select Civil Pleas, I. 43.

[504] Lib. Pract. de Consuetud. Remens, _passim_ (Archives Législatives de Reims).

[505] Archives Adminst. de Reims, T. I. p. 822.

[506] Actes du Parlement de Paris, T. I. p. cccvii.

[507] Cartulaire de l’Église de Paris, III. 433. After the first blows the parties could be separated on payment of a fine to the court, from the recipient of which the name is evidently derived. Apparently the good canons drew a distinction between awarding the duel and engaging in it, for we have already seen (p. 159) that twenty-four years before they had obtained from Innocent IV. a special privilege exempting them from the necessity of maintaining their rights by battle.

[508] Cartulaire de l’Église de Paris, I. 234.

[509] Ibid. I. 79-80.

[510] Patetta, Le Ordalie, p. 437.

[511] Les Olim, I. 24.

[512] Actes du Parl. de Paris, T. I. No. 2122, C. p. 197.

[513] Actes du Parl. de Paris, T. I. p. 446.

[514] Du Cange, s. v. _Arramiatio_.

[515] Les Olim, III. 679.

[516] Voirs est que tuit li cas où il pot avoir gages de bataille ou peril de perdre vie ou membre, doivent estre justicié par le laie justice; ne ne s’en doit sainte Église meller.—Coutumes du Beauvoisis, cap. xi. art. 30.

[517] See the Registre Criminel de la Justice de St. Martin-des-Champs (Paris, 1877).

[518] Joh. Friburgens. Summæ Confessorum Lib. II. Tit. iii. Q. 5.

[519] En la cort de la mer na point de bataille por prueve ne por demande de celuy veage.—Assises de Jerusalem, cap. xliii.

[520] Pardessus, Us et Coutumes de la Mer.

[521] Livres de Jostice et de Plet, Liv. VII. Tit. iv. § 2.

[522] According to Bracton, the appellant in criminal cases appears always obliged to swear to his own personal knowledge, _visu ac auditu_, of the crime alleged. This, however, was not the case elsewhere. Among the glossators on the Lombard law there were warm disputes as to the propriety, in certain cases, of forcing one of the contestants to commit perjury. The matter will be found treated at some length in Savigny’s Geschichte d. Rom. Recht. B. IV. pp. 159 sqq. Cf. Odofredi Summa de Pugna (Patetta, pp. 485-7).

The formula of the oath as given in the Fleta is as follows: The

## parties take each other by the hand and first the appellee swears, “Hoc

audis, homo quem per manum teneo, qui A. te facis appellari per nomen baptismi tui, quod ego C. fratrem tuum, vel alium parentem vel dominum non occidi, vel plagam ei feci ullo genere armorum per quod remotior esse debuit a vita et morti propinquior; sic me Deus adjuvet et hæc Sancta, etc.” Then the appellant responds: “Hoc audis homo quem per manum teneo, qui te R. facis appellari per nomen baptismi tui, quod tu es perjurus et ideo perjurus quia tali anno, tali die, tali hora et tali loco nequiter et in felonia occidisti C. fratrum meum tali genere armorum, unde obiit infra triduum; sic me Deus, etc.”—Lib. I. cap. xxxii. §§ 28, 29.—Bracton, Lib. III. Tract ii. c. 21, § 2.

In the German law the oath was simpler, but quite as absolute.—Jur. Prov. Saxon, Lib I. cap. lxii.—Sachsische Weichbild, xxxv. 8.

By the ordonnance of Philippe le Bel in 1306 each party was obliged to take three solemn oaths on relics before a priest, asserting his good cause in the most positive manner and his reliance on the judgment of God.—Isambert, Anc. Lois Françaises, II. 840.

[523] Cod. Leg. Normann. P. I. c. lxiv. (Ludewig. Reliq. MSS. T. VII. p. 270).—Anc. Cout. de Normandie (Bourdot de Richebourg, IV. 29).

[524] Leg. Alamann. Tit. 84.

[525] Capit. Ludov. Pii ann. 819, cap. x. A somewhat similar provision occurs in the L. Burgund. Tit. xlv. et lxxx.

[526] L. Guillelmi Conquest. III. xii. (Thorpe, I. 493).—A previous law, however, had assessed a Norman appellant sixty sous when defeated (Ibid. II. ii.).

[527] L. Henrici I. cap. lix. § 15.

[528] Glanvil. de Leg. Angl. Lib. II. cap. iii.

[529] Pipe Roll Society, I. 21; II. 31, 46, 59; III. 10.

[530] Maitland, Select Pleas of the Crown, I. 108.

[531] Solement ceux vainqus sont quittes ou lour clients pur eux rendre aux combattants vanquishours 40 sous en nosme de recreantise et ruaille peur la bourse a mettre eins ses deniers oustre le jugement sur le principall.—Horne’s Myrror of Justice, cap. iii. sect. 23.

[532] Formul. Vetus in L. Longobard. (Georgisch, p. 1276).

[533] For d’Oloron, Art. 21.

[534] Bracton, Lib. III. Tract. ii. cap. 18, § 4. In another passage, Bracton gives a reason for this clemency—“Si autem victus sit in campo ... quamvis ad gaolam mittendus sit, tamen sit ei aliquando gratia de misericordia, quia pugnat pro pace” (Ibid. cap. 21, § 7). See also the Fleta, Lib. I. cap. xxxii. § 32.

[535] Étab. de Normandie, Tit. “De prandre fame à force” (Marnier).

[536] Lib. Juris Civilis Veronæ, cap. 78 (p. 63).

[537] Odofredi Summa de Pugna c. xii. (Patetta, p. 491-2).

[538] Qui calumniam illatam non probat, pœnam debet incurrere quam si probasset reus utique sustineret.—C. 2 Decret. Caus. v. q. vi.

[539]

... ad poenas exigat æquas, Victus ut appellans sive appellatus, eadem Lege ligaretur mutilari aut perdere vitam. Moris enim extiterit apud illos hactenus, ut si Appellans victus in causa sanguinis esset, Sex solidos decies cum nummo solveret uno Et sic impunis, amissa lege, maneret: Quod si appellatum vinci contigeret, omni Re privaretur et turpi morte periret.

Guillielmi Brito. Phillippidos Lib. VIII.

It will be observed that the pre-existing Norman custom here described is precisely that indicated above by Glanville.

[540] _E. g._ Établissements Lib. I. cap. 27 and 91.—“Cil qui seroit vaincus seroit pendus” (cap. 82).

[541] Beaumanoir, chap. lxiv. § 10.

[542] Assises d’Antioche, Haute Cour, ch. xi.; Assises des Bourgeois, ch. vi. vii. See also Assises de Jerusalem, cap. 317.

[543] Recta fides et æquitas et jus armorum volunt ut appellans eandem incurrat pœnam quam defendens, si is victus fuerit et subactus.—Formula Duelli, apud Spelman. Glossar. s. v. _Campus_.

[544] Jur. Provin. Saxon. Lib. I. c. 63.—Jur. Provin. Alamann. cap. ccclxxxvi. §§ 19, 20 (Ed. Schilter.).

[545] Sachsische Weichbild, 82.—Jur. Provin. Alamann. cap. clxviii. § 20; clxxii. § 18 (Ed. Senckenberg.).

[546] Ibid. cap. ccxix. § 6 (Ed. Schilter.).

[547] Chron. Cornel. Zantfliet ann. 1369 (Mart. Ampl. Coll. V. 293-4).

[548] Chron. Augustan. (Pistor. III. 684, Ed. 1726).

[549] Assis. Hierosol. Alta Corte cap. cv. (Canciani, V. 208).

[550] Würdinger, Beiträge zur Geschichte des Kampfrechtes in Bayern, p. 8.

[551] Jur. Provin. Saxon. Lib. I. c. 63, 65.—Sachsische Weichbild, xxxv.—Jur. Provin. Alamann. cap. ccclxxxvi. § 31 (Ed. Schilter.); cap. clxxviii. §§ 7, 8 (Ed. Senckenb.). See Würdinger, p. 11, for the solemn sentence placing the defaulter under the ban.

[552] Proost, Législation des Jugements de Dieu, pp. 18, 21.

[553] For de Morlaas, Rubr. IV. art. 5.

[554] Horne’s Myrror of Justice, cap. iv. sect. 13.—Pipe Roll Society, I. 65.

[555] Schlegel Comment. ad Grágás § 31.—Grágás sect. VIII. cap. 105. A fanciful etymologist might trace to this custom the modern phrase of “posting a coward.”

[556] Neilson, Trial by Combat, p. 128.

[557] Jur. Provin. Alamann. cap. ccclxxxvi. § 32 (Ed. Schilter.); cap. clxxiii. § 13 (Ed. Senckenberg.).

[558] Un Miracle de Notre-Dame d’Amis et d’Amille (Monmerqué et Michel, Théat. Français au Moyen-Age, p. 238).

Another passage in the same play signifies the equality of punishment for appellant and defendant in cases of defeat:—

—Mais quant il seront En champ, jamais n’en ysteront Sans combatre, soiez-en fis, Tant que l’un en soit desconfis; Et celui qui vaincu sera, Je vous promet, pendu sera: N’en doubte nulz.

[559] Jur. Provin. Saxon, I. 63.

[560] Venables, Lincolnshire Notes and Queries, Vol. I. p. 195 (1889). So an entry in the Pipe Roll for 1158-9 “Et in conductu Rad. Shirloc. 6_s._ 8_d._ Et pro apparatu ejusdem Rad. et socii ejus ad duellum 16_s._ 4_d._”—Pipe Roll Society, I, 2.

[561] Neilson, Trial by Combat, p. 42.

[562] _E. g._ Constit. Sicular. Lib. II. Tit. xxxvii. § 1. This was also the case in Bohemia (Patetta, Le Ordalie, p. 159).

[563] Laurière, Table des Ordonn. p. 10.

[564] See facsimile of a record of a duel between Walter Blowberme and Hamo le Stare, where in the background the latter unlucky defendant is represented as hanging on a gallows (Maitland’s Select Pleas of the Crown, Vol. I.). It had already been engraved in Bysshe’s notes to Upton’s De Studio Militari, p. 37.

[565] Revue Historique de Droit, 1861, p. 514.

[566] Constit. Sicular. Lib. II. Tit. xxxvii. § 4.

[567] This, moreover, was not permitted by Frederic (_Ubi sup._).

[568] Jur. Provin. Saxon. I. 63.

[569] Würdinger, Beiträge, p. 22.

[570] De Militari Officio Lib. II. cap. viii.

[571] Book of Cynog, chap. xi. § 34 (Owen, II. 211).

[572] Du Boys, op. cit. I. 611.

[573] D’Achery Spicilegium, T. III. p. 376.

[574] Odofredi Summa de Pugna, vii. xi. (Patetta, pp. 490, 491).

[575] Galfridi Vit. Caroli Boni, cap. xiii. n. 94.

Similar persistence was exhibited in a combat before Richard II. in 1380. Katrington, the defeated defendant died the next day in delirium caused by exhaustion.—Neilson’s Trial by Combat, p. 172.

[576] It is perhaps worthy of remark that in India, where the judicial duel was unknown, in the other ordeals one of the ancient lawgivers, Katyayana, allows, and in some cases prescribes, the use of champions.—Patella, Le Ordalie, p. 110.

[577] L. Alamann. Add. cap. xxi.

[578] L. Longobard. Lib. I. Tit. iii. § 6, and Lib. II. Tit. lv. § 12.

[579] L. Anglior. et Werinor. Tit. XIV.

[580] Licet unicuique pro se campionem mercede conducere si eum invenire potuerit.—Ll. Frision. Tit. XIV. c. iv.

[581] Greg. Turon. Hist. Lib. X. cap. x. In this case, both combatants perished, when the accused was promptly put to death, showing that such a result was regarded as proving the truth of the offence alleged.

[582] Horum enim causa accidit ut non solum valentes viribus, sed etiam infirmi et senes lacessantur ad certamen et pugnam etiam pro vilissimis rebus (Lib. adv. Legem Gundobadi cap. vii.). Mitte unum de tuis, qui congrediatur mecum singulari certamine, ut probat me reum tibi esse, si occiderit (Lib. contra Judicium Dei cap i.).

[583] Liceat ei per campionem, id est per pugnam, crimen ipsum de super se si potuerit ejicere.—L. Longobard. Lib. I. Tit. i. § 8.

[584] Proost, Législation des Jugements de Dieu, p. 82.

[585] Jur. Provin. Saxon. Lib. I. art. 39, 48.—Sachsische Weichbild, art. xxxv. 2. 4; art. lxxxii. 2.

[586] Patetta, Le Ordalie, pp. 427-9. Roffredo, after carefully enumerating six cases in which champions were allowed by the law, adds: “Hodie tamen de consuetudine permittitur cuilibet campionem dare.”—Odofredi Summa de Pugna (Patetta, p. 485).

[587] Glanvil. de Leg. Angl. Lib. II. iii. Thus in a suit over a knight’s fee in 1201, the plaintiffs offer a champion, Walter Wider, “qui idem optulit ut de visu suo et auditu.”—Baildon, Select Civil Pleas, I. 33.

[588] Cod. Leg. Norman. P. II. cap. lxiv. (Ludewig Reliq. MSS. VII. 416).

[589] Étab. de Normandie, p. 21 (Marnier).

[590] Assises d’Antioche, Haute Cour, ch. ix. xi. xii.; Assises des Bourgeois, ch. vi. vii.

[591] Assis. Hierosol. Bassa Corte, cap. ccxxxviii. (Canciani, II. 534).—Constit. Sicular. Lib. II. Tit. xxxvii. § 2.

[592] Neilson’s Trial by Combat, pp. 88, 90-1.

[593] Horne’s Myrror of Justice, cap. iii. § 23.

[594] Myrror of Justice, cap. iv. § 11.

[595] Cod. Leg. Norman. P. II. cap. lxiv. § 18 (Ludewig VII 417).

[596] Among the crimes entailing infamy is enumerated that of “ceux qui combatent mortelment pur loyer qui sont vanquish en combate joyné per jugement.”—Horne’s Myrror of Justice, cap. iv. sect. 13.

[597] Et campioni qui victus fuerit, propter perjuriam quod ante pugnam commisit, dextra manus amputetur (Capit. Ludov. Pii ann. 819, § x.).—Victus vero in duello centum solidos et obolum reddere tenebitur. Pugil vero conductitius, si victus fuerit, pugno vel pede privabitur (Charta ann. 1203—Du Cange).—Also Beaumanoir, Cout. du Beauv., cap. lxvii. § 10 (Du Cange seems to me to have misinterpreted this passage).—See also Monteil’s admirable “Histoire des Français des divers États,” XVe Siècle, Hist. XIII.

[598] Assis. Hierosol. Bassa Corte, cap. ccxxxviii. Alta Corte, cap. cv. (Canciani II. 534; V. 208).

[599] Assises d’Antioche, Haute Cour, ch. xi.; Assises des Bourgeois, ch. vi. vii.

[600] Et li campions vaincus a le poing copé; car se n’estoit por le mehaing qu’il emporte, aucuns, par barat, se porroit faindre par loier et se clameroit vaincus, par quoi ses mestres emporteroit le damace et le vilonie, et cil emporteroit l’argent; et por ce est bons li jugemens du mehaing (Cout. du Beauv., cap. lxi. § 14).

[601] Isambert, Anciennes Lois Françaises V. 387.

[602] Constit. Sicular. Lib. II. Tit. xxxvii. § 3.

[603] Et post illam inquisitionem, tradat manum ipse camphio in manu parentis aut conliberti sui ante judicem.—L. Longobard. Lib. II. Tit. lv. § 11.

[604] Thus the oath administered by the papal legate to William of Holland, on his receiving knighthood previous to his coronation as King of the Romans in 1247, contains the clause “pro liberatione cujuslibet innocentis duellum inire.”—Goldast. Constit. Imp. T. III. p. 400.

[605] Anomalous Laws, Book x. chap. ii. § 9 (Owen, II. 315). The position thus acquired was that of brother or nephew in sharing and paying _wer-gild_.

[606] Ut nemo furem camphium mancipiis aut de qualibet causa recipere præsumat, sicut sæpius dominus imperator commendavit.—Capit. Carol. Mag. ex L. Longobard. cap. xxxv. (Baluze).

[607] Novel. CXV. cap. iii. § 10—more fully set forth in Lib. III. Cod. Tit. xxvii. l. 11.

[608] Conseil. chap. xxxiii. tit. 32.

[609] Ibid. chap. xv. tit. 87, which is a translation of Lib. IV. Dig. Tit. ii. l. 23, § 2.

[610] Percutiat si quis hominem infamem, hoc est lusorem vel pugilem, aut mulierem publicam, etc.—Sachsische Weichbild, Art. cxxix. “Plusieurs larrons, ravisseurs de femmes, violleurs d’églises, batteurs à loyer,” etc.—Ordonn. de Charles VII. ann. 1447, also Anciennes Coutumes de Bretagne (Monteil, _ubi sup._).

[611] Johen de Beaumont dit que chanpions loiez, prové de tel chose, ne puet home apelier á gage de bataille an nul quas, si n’est por chanpion loiez por sa deffansse; car la poine de sa mauvese vie le doit bien en ce punir.—Livres de Jostice et de Plet, Liv. XIX. Tit. ii. § 4.

[612] Campiones et eorum liberi (ita nati) et omnes qui illegitime nati sunt, et omnes qui furti aut pleni latrocinii nomine satisfecere, aut fustigationem sustinuere, hi omnes juris beneficiis carent.—Jur. Provin. Alaman. cap. xxxvi. § 2 (Ed. Schilter.).—Jur. Provin. Saxon. Lib. III. c. xlv.

[613] Campionibus et ipsorum liberis emendæ loco datur fulgur ex clypeo nitido, qui soli obvertitur, ortum; hoc is qui eis satisfactionem debet loco emendæ præstare tenetur (Jur. Prov. Alaman. cap. cccv. § 15.—Jur. Provin. Saxon. Lib. III. art. xlv.). In the French version of the Speculum Suevicum, these emblematic measures of damage are followed by the remark “cestes emandes furent establies an la vieillie loy per les roys” (P. II. c. lxxxvi.), which would appear to show that they were disused in the territories for which the translation was made.

[614] Richstich Landrecht, Lib. II. cap. xxv.

[615] Odofredi Summa de Pugna c. v. (Patetta, p. 489).

[616] Lib. Juris Civilis Veron. cap. 125, 126 (Veronæ, 1728, p. 95).

[617] L. Longobard. Lib. II. Tit. lv. §§ 38, 40.

[618] Muratori, Antiq. Ital. Dissert. 39.

[619] L. Longobard. Lib. I. Tit. ix. § 37; Tit. x. § 4.

[620] Vix enim aut nunquam duo pugiles inveniri poterunt sic æquales, etc.—Constit. Sicular. Lib. II. Tit. xxxiii.

[621] Ibid. Lib. I. Tit. xxxiii.

[622] Ibi tunc multi latrones a gladiatoribus singulari certamine devicti, suspendio perierunt.—Dithmari. Chron. Lib. VII.

[623] Jur. Provin. Alaman. cap. xxxvi. § 2; cap. lx. § 1.

[624] Sachsische Weichbild, c. lxxxii. § 3.

[625] Concil. Eccles. Rotomag. p. 128 (Du Cange).

[626] Cod. Leg. Norman. P. II. c. lxiv. § 19 (Ludewig. VII. 416).

[627] De Leg. Angliæ Lib. II. cap. iii.

[628] Bracton, Lib. III. Tract. ii. cap. 32 § 7.

[629] Ibid. c. 18 § 4.

[630] See a case in which Ralph Rusdike, a witness, offers battle against Elias of Dumbleton—“et Elias defendit totum versus eum ut versus campionem conductitium et villanus.” Then Ralph shows that he has an interest in the matter which warrants his acting as appellor and battle is gaged.—Maitland’s Select Pleas of the Crown, Vol. I. p. 80. Also another case in 1220 in which the appellant offers a silver mark to the king for opportunity to prove that an adverse witness is a hired champion.—Ib. p. 124. Another case in 1220 (p. 137) shows how customary it was to impugn an adverse witness as a hired champion.

[631] Neilson’s Trial by Combat, p. 49.

[632] This charter, which has recently been found among the records of Durham Cathedral, is printed in the London _Athenæum_ of November 10th, 1866. It is not dated, but the names of the subscribing witnesses show that it must have been executed about the year 1260.

I owe to James Clephan, Esq., of Newcastle-on-Tyne, the interesting fact that the Sherburn Hospital, Durham, is still in possession of the vill of century by Ralph, son of Paulinus of York, who had obtained it as the result of a judicial combat between his champion and that of the opposing claimants.

[633] Neilson, Trial by Combat, p. 51.

[634] Lord Eldon, in his speech advocating the abolition of trial by battle, in 1819, stated, “In these the parties were not suffered to fight _in propria persona_—they were compelled to confide their interests to champions, on the principle that if one of the parties were slain, the suit would abate.”—Campbell’s Lives of the Chancellors, VII. 279.

[635] Pur felony ne poit nul combattre pur autre; en personal

## actions nequidant venials, list aux actors de faire les battailes

per lour corps ou per loyal tesmoigne come en droit reals sont les combats.—Horne’s Myrror of Justice, cap. iii. sect. 23.

[636] Bracton, Lib. III. Tract. ii. cap. 21, §§ 11, 12.—Ibid. cap. 24.

[637] Regiam Majestatem, Lib. IV. cap. iii.

[638] Neilson’s Trial by Combat, p. 115. By the Burgher laws of Scotland, a man who was incapacitated by reason of age from appearing in the field, was allowed to defend himself with twelve conjurators.—L. Burgor. cap. xxiv. §§ 1, 2.

[639] Assises de Jerusalem, Baisse Court, cap. 145, 146.—Beaumanoir, cap. lxi. § 6; cap. lxii. § 4.

[640] Beaumanoir, cap. lxi. § 14.

[641] Conseil, chap. XXII. Tit. xiii.

[642] Grandes Chroniques T. IV. p. 427.

[643] Il est usage que se aucun demende la cort de bataille qui est juege par champions loées, il la tendra le jor maimes, et si ele est par le cors des quereléors il metra jor avenant à la tenir autre que celui.—Coutumes d’Anjou, XIII.^e Siècle, § 74.

[644] Kar haute persone doit bien metre por lui, à deffendre soi, home, honeste persone, se l’an l’apele, ou s’il apele autre.—Livres de Jostice et de Plet, Liv. II. Tit. xviii.

[645] Lib. Pract. de Consuet. Remens. § 40 (Archives Législ. de Reims, Pt. 1. p. 40).

[646] Ibid. § 14, p. 37.

[647] For de Morlaas, Rubr. liii. art. 188.

[648] Quando pugna debet fieri per campionem debet fieri eorum equa distributio ... et etiam jure longobardo cavetur quod pugna debet fieri per similes campiones.—Odofredi Summa de Pugna c. iv. (Patetta, p. 488).

[649] L. Jur. Civilis Veronæ cap. 125, 126 (p. 95).

[650] Patetta, Le Ordalie, pp. 427-9.

[651] Pugiles in Bigorra non nisi indigenæ recipiantur (Lagrèze, Hist. du Droit dans les Pyrénées, p. 251). By the same code, the tariff of payment to the champion was 20 sous, with 12 for his shield and 6 for training—“pro præparatione.”

[652] Las Siete Partidas, Pt. VII. Tit. iv. l. 3.

[653] Du Boys, Droit Criminel des Peuples Modernes, I. 611-13.

[654] Campagnola, Lib. Juris Civ. Veronæ (Veronæ, 1728, p. xviii).

[655] Polyptichum Irminonis, App. No. 33 (Paris, 1836, p. 372).

[656] Une malvese coustume souloit courre anciemment, si comme nos avons entendu des seigneurs de lois.—Cout. du Beauvoisis, cap. xxxviii. § 15.

[657] Hist. des Français, XV^e Siècle, Hist. xiii.—The tariff of rewards paid to Blondel, and Beaumanoir’s argument in favor of mutilating a defeated champion, offer a strong practical commentary on the fundamental principles upon which the whole system of appeals to the judgment of God was based—that success was an evidence of right.

[658] Bysshe’s notes to Upton’s De Studio Militari, p. 36.

[659] Neilson’s Trial by Combat, p. 150.

[660] Hist. Monast. Figeacens. (Baluz. et Mansi IV. p. 1).

[661] Abbonis Floriac. Collect. Canon. can. ii.—Histor. Trevirens. (D’Achery Spicileg. II. 223).—Gerohi Reichersperg. de Ædificio Dei cap. VI.

[662] Schlegel Comment. ad Grágás, p. xxii.—Dasent, in his Icelandic Chronology (Burnt Njal, I. cciii.), places this in 1006, and Keyser (Religion of the Northmen, Pennock’s Trans. p. 258) in 1000.

[663] The kind of Christianity introduced may be estimated by the character of the Apostle of Iceland. Deacon Thangbrand was the son of Willibald Count of Saxony, and even after he had taken orders continued to ply his old vocation of viking or sea robbing. To get rid of him and to punish him, King Olaf Tryggvesson of Norway imposed upon him the task of converting Iceland, which he accomplished with the sword in one hand and the Bible in the other.—See Dasent, Burnt Njal, II. 361.—Olaf Tryggvesson’s Saga c. lxxx. (Laing’s Heimskringla, I. 441).

[664] Keyser, op. cit. p. 258.

[665] Saxon. Grammat. Hist. Dan. Lib. x.

[666] Ibid. Lib. xi.

[667] Lünig Cod. Diplom. Ital. I. 2455.—The liberal terms of this charter show the enlightenment of the Emperor, and explain the fidelity manifested for him by the imperial cities in his desperate struggles with his rebellious nobles and an implacable papacy.

[668] Neilson’s Trial by Combat, pp. 33, 65, 97.

[669] Chart. Commun. Ambianens. c. 44 (Migne’s Patrolog. T. 162, p. 750).

[670] The charter is given by Proost, op. cit. p. 96.

[671] Ferrum, cacavum, pugnam, aquam, vobis non judicabit vel judicari faciet (Muratori, Antiq. Ital. Dissert. 38).

[672] Priviléges de Lourdes, cap. ii. (Lagrèze, op. cit. p. 482).

[673] Ibid., cap. xiii. (Lagrèze p. 484). These privileges were confirmed at various epochs, until 1407.

[674] Statuta Susatensia, No. 41 (Hæberlin Analect. Med. Ævi. p. 513). This is retained in the subsequent recension of the law, in the thirteenth century (Op. cit. p. 526).

[675] Consuetud. Tornacens. ann. 1187, §§ ii. iii. xxi (D’Achery Spicileg. III. 552).

[676] Oudegherst, Annales de Flandre ed. Lesbroussart. T. I. pp. 426 sqq.; T. II. not. ad. fin.

[677] Coleccion de Cédulas, etc., Madrid, 1830, Tom. VI. p. 142.—Memorial Histórico Español, Madrid, 1850, T. I. p. 47.

[678] Statuta Commun. apud Crispiacum (D’Achery Spicileg. III. 595).

[679] Legg. Villæ de Arkes § xxxi. (Ibid. p. 608).

[680] Libertates Villæ Ricomag. § 6 (Ibid. p. 671).

[681] E sobre ayso que dam e autreyam als borges de la vielle de Maubourguet que totz los embars pusquen provar sens batalhe, etc.—Coutumes de Maubourguet, cap. v. That this, however, was not expected to do away entirely with the battle trial is shown by the regulation prescribed in cap. xxxvii. (Lagrèze, op. cit. pp. 470, 474).

[682] L. Burgorum, c. 14, 15 (Skene).

[683] Warnkönig, Hist. de la Flandre, IV. 129.

[684] In omni mercato Flandriæ si quis clamorem adversus eos suscitaverit, judicium scabinorum de omni clamore sine duello subeant; ab duello vero ulterius liberi sint.—Warnkönig. Hist. de la Flandre, II. 411.

[685] Nemo mercatorem de Flandria duello provocabit (Ibid. II. 426).

[686] Traité de 1228, art. 3 (Esneaux, Hist. de Russie, II. 272).

[687] Belitz de Duellis Germanorum, p. 9. Vitembergæ, 1717.

[688] Constit. Frid II. de Jur. Norimb. § 4 (Goldast. Constit. Imp. I. 291).

[689] Sachsische Weichbild, Art. xxxv. lxxii. lxxxi.-lxxxiv. lxxxix. xc. xcii. cxiv.

[690] Henke, Gesch. des Deut. Peinlichen Rechts I. 192 (Du Boys, op. cit. II. 590).

[691] Goldast. op. cit. I. 314.

[692] Jur. Cæsar. P. IV. cap. i. (Senckenberg Corp. Jur. German. I. 118). This portion of the Kayser-Recht is probably therefore posterior to the rise of the Hapsburg dynasty.

[693] Belitz de Duel. German. p. 11.

[694] Jura Primæva Moraviæ, Brunæ, 1781, pp. 33, 102.

[695] “Liber adversus Legem Gundobadi” and “Liber contra Judicium Dei” (Agobardi Opp. Ed. Baluz I. 107, 301). Both of these works display marked ability, and a spirit of enlightened piety, mingled with frequent absurdities which show that Agobard could not in all things rise superior to his age. One of his favorite arguments is that the battle ordeal was approved by the Arian heretic Gundobald, whom he stigmatizes as “quidam superbus ac stultus hæreticus Gundobadus Burgundionum rex.”

[696] Concil. Valentin. ann. 855 can. 12.

[697] C. 22 Decreti caus. II. q. v.

[698] Pet. Cantor. Verb. Abbrev. cap. LXXVIII.

[699] C. 1 Extra Lib. V. Tit. xiv.

[700] C. 2 Ibid.

[701] Innocent. PP. III. Regest. XI. 64—Verum quoniam hujusmodi duellorum judicia juxta pravam quarundam consuetudinem regionum non solum a laicis seu clericis in minoribus ordinibus constitutis, sed etiam a majoribus ecclesiarum prælatis consueverunt, prout multorum assertione didicimus, exerceri.

[702] Concil. Lateranens. IV. can. 18.

[703] Consuetud. S. Montisfortis (Contre le Franc-Alleu sans Tiltre, p. 229).

[704] Concil. Parisiens. ann. 1212, P. IV. c. xv. (Harduin. vi. ii. 2017).

[705] S. Raymundi Summæ Lib. II. Tit. iii.—Cardinal Henry of Susa is equally uncompromising—Hostiensis Aureæ Summæ Lib. V. Tit. _De Cler. pugnant._

[706] Alexandri de Ales Summæ P. III. Q. xlvi. Membr. 3.

[707] Sec. Sec. Q. 95 art. 8.

[708] Wilhelmi Egmond. Chron. (Matthæi Analect. IV. 231). Proost (Législation des Jugements de Dieu, p. 16) gives this story, with some variations, as occurring at Mons, and states that the duel was authorized by no less a personage than Pope John XXII. Cornelius Zantfliet in his Chronicle (Martene Ampl. Collect. V. 182) locates it at Cambron in Hainault, and states that the Jew was a favorite of William Count of Hainault. Mr. Neilson informs me that Olivier de la Marche likewise adopts Cambron as the scene of the occurrence. The tale apparently was one which obtained wide currency.

[709] In 1374 Gregory XI. when condemning the Sachsenspiegel laid especial stress on the passages in which the judicial duel was prescribed (Sachsenspiegel, ed. Ludovici, 1720, p. 619). As late as 1492, the Synod of Schwerin promulgated a canon prohibiting Christian burial to those who fell in the duel or in tournaments.—Synod. Swerin. ann. 1492, Can. xxiv. (Hartzheim Concil. German. V. 647).

[710] “Et si Deus adest nonne nefas est habendo justitiam succumbere posse?... Et si justitia in duello succumbere nequit, nonne de jure acquiritur quod per duellum acquiritur?... stultum enim est valde vires quas Deo comfortat inferiores in pugile suspicari.”—De Monarchia II. 10 (Patetta, Le Ordalie, p. 415).

[711] Joh. Friburgens. Summæ Confessorum Lib. II. Tit. iii. Q. 3-5.

[712] Constit. Sicular. Lib. II. Tit. xxxii. xxxiii.—“Non tam vera probatio quam quædam divinatio ... quæ naturæ non consonans, a jure communi deviat, æquitatis rationibus non consentit.” Cf. Lib. I. Tit. xxi. cap. 2.

[713] Cum viderit innocentes in duello succubuisse, et sontes contra in sua iniustitia nihilominus victoriam obtinuisse. Et ideo in jura imperii scriptum est, ubi duo ex more in duellum procedunt, hoc non pertinet ad imperium.—Jur. Cæsar. P. II. c. 70 (Senckenberg I. 54).

[714] Quilibet sciat imperatorem jussisse ut nemo alterum ad duellum provocet.... Nemo enim unquam fortiores provocari vidit, sed semper debiliores, et fortiores semper triumpharunt.—Ibid. P. IV. cap. 19.

[715] Rudolphi I. Privileg. (Ludewig. Reliq. MSS. T. IV. p. 260).

[716] Goldast. Constitt. Imp. III. 446.

[717] Malleus Maleficar. Francof. 1580, pp. 527-9.

[718] Villanueva, Viage Literario, XXII. 288.

[719] Los sabios antiguos que ficieron las leyes non lo tovieron por derecha prueba; ed esto por dos razones; la una porque muchas vegadas acaesce que en tales lides pierde la verdat e vence la mentira; la otra porque aquel que ha voluntad de se adventurar á esta prueba semeja que quiere tentar á Dios nuestro señor.—Partidas, P. III. Tit. xiv. l. 8.

[720] Ibid. P. VII. Tit. iii. l. 2, 3. According to Montalvo’s edition of the Partidas (Sevilla, 1491), these laws were still in force under Ferdinand and Isabella.

[721] Tres dias débese acordar al reptado para escoger una de las tres maneras que desuso dixiemos, qual mas quisiere porque se libre el pleyto. ... ca el re nin su corte non han de mandar lidiar por riepto.—Ibid. P. VII. Tit. iii. l. 4. Some changes were introduced in these details by subsequent ordinances.

[722] Muera quito del riepto; ca razon es que sea quito quien defendiendo la verdad recibió muerte.—Ibid. P. VII. Tit. iv. l. 4.

[723] Crónica de Alfonso el Onceno, cap. CCLXII.

[724] Ordenamiento de Alcalá, Tit. XXXII. ll. vii.-xi. See also the Ordenanzas Reales of 1480, Lib. IV. Tit. ix.

[725] Meyer, Institutions Judiciaires, I. 337.

[726] Nous deffendons à tous les batailles par tout nostre demengne, més nous n’ostons mie les clains, les respons, les convenants, etc.... fors que nous ostons les batailles, et en lieu des batailles nous meton prueves de tesmoins, et si n’oston pas les autres bones prueves et loyaux, qui ont esté en court laye siques à ore.—Isambert, I. 284.

Laurière (Tabl. des Ordonn. p. 17) alludes to an edict to the same purport, under date of 1240, of which I can nowhere else find a trace. There is no reference to it in the Tables des Ordonnances of Pardessus (Paris, 1847).

It is a curious illustration of the fluctuating policy of the contest that in his struggle to enforce the supremacy of the royal jurisdiction as against the prelates of the province of Reims, one of the complaints of the bishops at the Council of Saint-Quentin in 1235 is that he forced ecclesiastics in his court to prove by the duel their rights over their serfs—“Item, supplicat concilium quod dominus rex non compellat personas ecclesiasticas probare per duellum in curia sua homines quos dicunt suos esse de corpore suo” (Harduin. VII. 259).

[727] Se ce est hors l’obeissance le Roy, gage de bataille (Étab. de St. Louis, Liv. II. chap. xi. xxix. xxxviii.). Beaumanoir repeats it, a quarter of a century later, in the most precise terms, “Car tout cil qui ont justice en le conté poent maintenir lor cort, s’il lor plest, selonc l’ancienne coustume; et s’il lor plest il le poent tenir selonc l’establissement le Roy” (Cout. du Beauv. cap xxxix. § 21). And again, “Car quant li rois Loïs les osta de sa cort il ne les osta pas des cours à ses barons” (Cap. LXI. § 15).

[728] Liv. I. chap. xxvii. xci. cxiii. etc. This is so entirely at variance with the general belief, and militates so strongly with the opening assertion of the Établissements (Ordonn. of 1260) that I should observe that in the chapters referred to the direction for the combat is absolute; no alternative is provided, and there is no allusion to any difference of practice prevailing in the royal courts and in those of the barons, such as may be seen in other passages (Liv. I. chap. xxxviii. lxxxi. cxi. etc.). Yet in a charter of 1263, Louis alludes to his having interdicted the duel in the domains of the crown in the most absolute manner.—“Sed quia duellum perpetuo de nostris domaniis duximus amovendum” (Actes du Parlement de Paris No. 818 A. T. I. p. 75, Paris, 1863).

[729] Établissements Liv. I. chap. clxvii.

[730] Jur. Provin. Alamann. cap. CLXXI. §§ 10, 11, 12.

[731] Pilori, échelle, carquant, et peintures de champions combattans sont marques de haute justice.—Instit. Coutum. Liv. II. Tit. ii. Règle 47.

[732] Beaumanoir, op. cit. chap. LXI. §§ 11, 12, 13.

In Normandy, these advantages were enjoyed by all seigneurs justiciers. “Tuit chevalier et tuit sergent ont en leurs terres leur justice de bataille en cause citeaine; et quant li champions sera vaincuz, il auront LX sols et I denier de la récréandise.”—Etab. de Normandie (Ed. Marnier, p. 30). These minutely subdivided and parcelled out jurisdictions were one of the most prolific causes of debate during the middle ages, not only on account of the power and influence, but also from the profits derived from them. That the privilege of decreeing duels was not the least remunerative of these rights is well manifested by the decision of an inquest held during the reign of Philip Augustus to determine the conflicting jurisdictions of the ducal court of Normandy and of the seigneurs of Vernon. It will be found quoted in full by Beugnot in his notes on the Olim, T. I. p. 969. See also Coutumes d’Auzon (Chassaing, Spicilegium Brivatense, p. 95).

[733] See Coutume de Saint-Bonnet, cap. 13 (Meyer, Recueil d’Anciens Textes, Paris, 1874, I. 175).

[734] Les Olim, I. 491. It is perhaps needless to add that Mathieu’s suit was fruitless. There are many cases recorded in the Olim showing the questions which arose and perplexed the lawyers, and the strenuous efforts made by the petty seigneurs to preserve their privileges.

[735] Actes du Parlement de Paris, I. 407.

[736] Recueil de Chants Historiques Français, I. 218. It is not unreasonable to conjecture that these lines may have been occasioned by the celebrated trial of Enguerrand de Coucy in 1256. On the plea of baronage, he demanded trial by the Court of Peers, and claimed to defend himself by the wager of battle. St. Louis proved that the lands held by Enguerrand were not baronial, and resisted with the utmost firmness the pressure of the nobles who made common cause with the culprit. On the condemnation of de Coucy, the Count of Britanny bitterly reproached the king with the degradation inflicted on his order by subjecting its members to inquest.—Beugnot, Olim I. 954.—Grandes Chroniques ann. 1256.

[737] Et se li uns et li autres est si enreués, qu’il n’en demandent nul amesurement entrer pueent par folie en périll de gages (Conseil, chap. XV. Tit. xxvii.). Car bataille n’a mie leu ou justise a mesure (Ibid. Tit. xxviii.). Mult a de perix en plet qui est de gages de bataille, et mult es grans mestiers c’on voist sagement avant en tel cas (Cout. du Beauv. chap. lxiv. § 1). Car ce n’est pas coze selonc Diu de soufrir gages en petite querele de meubles ou d’eritages; mais coustume les suefre ès vilains cas de crieme (Ibid. chap. vi. § 31).

[738] Actes du Parlement de Paris, T. I. No. 2269 A. p. 217.

[739] Beaumanoir, op. cit. chap. lxi. § 63.

[740] Grandes Chroniques, T. IV. p. 104.

[741] Isambert, II. 702, 806.

[742] I have not been able to find this Ordonnance. Laurière alludes to it (Tabl. dés Ordonn. p. 59), but the passage of Du Cange which he cites refers only to prohibition of tournaments. The catalogue of Pardessus and the collection of Isambert contain nothing of the kind, but that some legislation of this nature actually occurred is evident from the preamble to the Ordonnance of 1306—“Savoir faisons que comme ça en arrière, pour le commun prouffit de nostre royaume, nous eussions defendu généraument à tous noz subgez toutes manieres de guerres et tous gaiges de batailles, etc.” It is worthy of note that these ordonnances of Philippe were no longer confined to the domain of the crown, but purported to regulate the customs of the whole kingdom.

[743] Willelmi Egmond. Chron. (Matthæi Analect. IV. 135-7).

[744] Dont pluseurs malfaicteurs se sont avancez par la force de leurs corps et faulx engins à faire homicides, traysons et tous autres maléfices, griefz et excez, pource que quant ilz les avoient fais couvertement et en repost, ilz ne povoient estre convaincuz par aucuns tesmoings dont par ainsi le maléfice se tenoit.—Ordonnance de 1306 (Éd. Crapelet, p. 2).

[745] Car entre tous les périlz qui sont, est celui que on doit plus craindre et doubter, dont maint noble s’est trouvé déceu ayant bon droit ou non, par trop confier en leurs engins et en leurs forces ou par leurs ires oultrecuidées (Ibid. p. 34). A few lines further on, however, the Ordonnance makes a concession to the popular superstition of the time in expressing a conviction that those who address themselves to the combat simply to obtain justice may expect a special interposition of Providence in their favor—“Et se l’intéressé, sans orgueil ne maltalent, pour son bon droit seulement, requiert bataille, ne doit doubter engin ne force, car le vray juge sera pour lui.”

[746] Ordonnance de 1306, cap. i.

[747] Isambert, II. 850.

[748] See Les Olim, _passim_.

[749] Actes du Parlement de Paris, I. 446.

[750] Les Olim, III. 381-7.—Vaissette, Hist. Gén. de Languedoc, T. IV., Preuves, 140-44.

[751] Wadding. Annal. Minor. ann. 1312 No. 2.

[752] Isambert, III. 40.

[753] Chronique Métrique, I. 6375.

[754] Et quant au gage de bataille, nous voullons que il en usent, si comme l’en fesoit anciennement.—Ordonn. Avril 1315, cap. I (Isambert, III. 62).

[755] Nous voullons et octroions que en cas de murtre, de larrecin, de rapte, de trahison et de roberie, gage de bataille soit ouvert, se les cas ne pouvoient estre prouvez par tesmoings—Ordonn. 15 Mai 1315 (Isambert, III. 74).

[756] Ancien Coutumier inédit de Picardie, p. 48 (Marnier, Paris, 1840).

[757] Ordonn. Mai 1315, P. I. chap. 13 (Isambert, III. 90).

[758] Ibid. P. II. chap. 8 (Isambert, III. 95).

[759] Isambert, III. 196-221.

[760] Ordonn. 9 Mai 1330 (Isambert, IV. 369).

[761] Neron, Récueil d’Édits, I. 16.

[762] Dissertations sur la Mythologie Française.

[763] Bofarull y Mascaró, Coleccion de Documentas ineditos, VI. 355-59.

[764] De Laurière, note on Loysel, Instit. Coutum. Lib. VI. Tit. i. Règle 22.

[765] Froissart, Liv. III. chap. xlix. (Éd. Buchon, 1846).

[766] Hist. de Charles VI. ann. 1386.

[767] Hist. de Charles VI. Liv. VI. chap. ix.

[768] Buchon, notes to Froissart, II. 537.

[769] Registre du Châtelet de Paris, I. 350 (Paris, 1861).

[770] Que jamais nuls ne fussent receus au royaume de France à faire gages de bataille ou faict d’armes, sinon qu’il y eust gage jugé par le roy, ou la cour de parlement.—Juvenal des Ursins, ann. 1409.

[771] Monstrelet, Liv. I. chap. lv.

[772] Nic. Uptoni de Militari Officio Lib. II. cap. iii. iv. (pp. 72-73).

[773] Très Ancienne Cout. de Bretagne, chap. 99, 129-135 (Bourdot de Richebourg).

[774] Ancienne Cout. de Normandie, chap. 53, 68, 70, 71, 73, etc. (Bourdot de Richebourg).

[775] Fors et Cost. de Béarn, Rubr. de Batalha (Bourdot de Richebourg, IV. 1093).

[776] Mathieu de Coussy, chap. cxii.—Ol. de la Marche, ch. xxii. Such a case as this justifies the opinion quoted by Olivier de la Marche, “que le gaige de bataille fut trouvé par le diable pour gagner et avoir les âmes de tous les deux, tant du demandeur que du deffendeur” (Traité du Duel Judiciaire, p. 4, communicated to me by George Neilson, Esq.).

[777] D. Calmet, Hist. de Lorraine.

[778] Jehan Masselin, Journal des États de Tours, p. 320.

[779] Archives de Pau, _apud_ Mazure et Hatoulet, Fors de Béarn, p. 130. There may have been something exceptional in this case, since the punishment was so much more severe than the legal fine of 16 sous quoted above (Fors de Morlaas, Rubr. IV.).

[780] D. Calmet, Hist. de Lorraine.

[781] Brantôme, Discours sur les Duels. An account of this duel, published at Sedan, in 1620, represents it as resulting even less honorably to Fendilles. He is there asserted to have formally submitted, and to have been contemptuously tossed out of the lists like a sack of corn, Des Guerres marching off triumphantly, escorted with trumpets.

[782] Fontanon, I. 665.

[783] Statuta Criminalia Mediolani e tenebris in lucem edita, Bergomi, 1594.—Statuta et Decreta antiqua Civitatis Placentiæ, Placentiæ, 1560.

[784] Patetta, Le Ordalie, p. 449.

[785] Julii PP. II. Bull. _Regis pacifici_ § 2, 1509 (Mag. Bull. Rom. I. 499).

[786] Leon. PP. X. Bull. _Quam Deo_, 23 Julii, 1519 (Ib. p. 596).

[787] Patetla, op. cit. pp. 438-46.

[788] Eph. Gerhardi Tract. Jurid. de Judic Duellico c. ii. § II.

[789] Quia in duellorum dimicatione plurimæ hinc inde fraudes committi possunt; raro enim illi inter quos illud fit judicium per se decertant, sed pugiles conducunt, qui nonnunquam dono, favore, et promissis corrumpuntur.—L. Uladis. II. c. ix. (Batthyani, I. 531).

[790] Reperio tamen indubie vulgarem purgationem sive duellum in casu sine scrupulo admittendum quum publicæ salutis caussa fiat: et istud est admodum laudabile.—Damhouder. Rer. Crimin. Praxis cap. xlii. No. 12 (Antverp. 1601).

[791] Concil. Trident. Sess. xxv. De Reform, cap. xix. Detestabilis duellorum usus fabricante diabolo introductus.

[792] Anne is usus relinquendus sit arbitrio principis? Videtur quod sic, et respiciendum esse principi quid discernat.—Le Plat, Monument. Concil. Trident. VII. 19.

[793] Le Plat, VII. 75.

[794] Würdinger, Beiträge, pp. 17, 19.

[795] Belitz de Duellis German. p. 15.

[796] For these details I am indebted to Du Boys, Droit Criminel des Peuples Modernes, I. 611-17, 650. See also Patetta, Le Ordalie, p. 161. The Sachsenspiegel was extensively in use in Poland, and under it duels continued to be lawful until its abrogation early in the sixteenth century by Alexander I. (Ib. p. 162).

[797] Statut. Roberti III. cap. iii. The genuineness of this statute has been questioned, but it undoubtedly reflects the practice of the period. For the evidence, see Neilson (Trial by Combat, p. 256), who further notes the identity of these provisions with those of Philippe le Bel’s ordonnance of 1306.

[798] Neilson’s Trial by Combat, p. 292.

[799] Knox’s Hist. of Reformation in Scotland, pp. 322, 446-7.

[800] Neilson’s Trial by Combat, pp. 307, 310.

[801] Neilson’s Trial by Combat, p. 35. See also a very interesting essay on the origin and growth of the jury by Prof. J. B. Thayer in the Harvard Law Review, Jan.-March, 1892.

[802] Maitland’s Select Pleas of the Crown, p. xxiv. Whatever may have been the desire of the royal judges, King John himself was not averse to it, for there is a record of two duels between common malefactors ordered to be fought before the king “quia ea vult videre” (Ib. p. 40).

[803] Spelman (Gloss. s. v. _Campus_) gives a Latin translation of this interesting document from a MS. of the period.

Mr. Neilson draws (pp. 167, 168) a distinction, which is evidently correct, between what he calls the chivalric duel, conducted by marshals and constables, and the ordinary combat adjudged by the courts of law. The former makes it appearance in the latter half of the fourteenth century, when the common law duel was falling into desuetude. As we have seen above, a somewhat similar development, though not so formally differentiated, is traceable in France and Italy.

[804] 3 Henr. VII. cap. I.

[805] John Myrc’s Instructions for Parish Priests, p. 26 (Early English Text Society, 1868).

[806] Stow’s Annals, ann. 1492.

[807] Spelman, Gloss, p. 103.—Stow’s Annals, ann. 1571.

[808] Neilson, Trial by Combat, p. 205.

[809] Maitland’s Select Pleas of the Crown, I. 92. See Neilson, p. 154, for an account of a savage combat in 1456 with an approver who had already caused the hanging of several innocent men. In this case the judge laid down the law that if the approver was vanquished the defendant must be hanged for homicide. This strange ruling is not in accordance with earlier practice. In 1220 an approver accuses seven persons, but is defeated in the first combat and hanged, whereupon the accused are discharged on bail (Maitland, Select Pleas, I. 123). See two other cases in the same year (Ibid. p. 133).

[810] Hale, Pleas of the Crown, II. chap. xxix. According to Pike (Hist. of Crime in England, I. 286 sq.), the record shows that approvers almost invariably either died in prison or were hanged in consequence of the acquittal of the party whom they accused. It was very rare that a combat ensued.

[811] Rushworth’s Collections, Vol. I. P. I. pp. 788-90, P. III. p. 356. The gloves presented by the champions in such trials had a penny in each finger; the principals were directed to take their champions to two several churches and offer the pennies in honor of the five wounds of Christ that God might give the victory to the right (Neilson’s Trial by Combat, p. 149).

[812] Hale, loc. cit.

[813] Campbell’s Lives of the Chancellors of England, VI. 112.

[814] I. Barnewall & Alderson, 457.—In April, 1867, the journals record the death at Birmingham of William Ashford the appellant in this suit. Thornton emigrated to America, and disappeared from sight.

[815] Campbell, Chief Justices, III. 169.

[816] I. Harris and McHenry’s Md. Reps. 227.

[817] Cooper’s Statutes at Large of S. C. II. 403, 715.

[818] Kilty’s Report on English Statutes, Annapolis, 1811, p. 141.

[819] Capit. Lib. VII. cap. 259.

[820] Vita Patrum Lib. III. c. 41 (Migne’s Patrologia, T. LXXIII. p. 764).

[821] Shu-King, Pt. IV. ch. 4, 27 § 21 (after Goubil’s translation).

[822] Staunton, Penal Code of China, p. 364.

[823] Livre des Récompenses et des Peines, trad. par Stan. Julien, Paris, 1835, p. 220.

[824] W. T. Stronach in “Journal of the North China Branch of the Royal Asiatic Society,” New Series, No. 2, Dec. 1865, p. 176.

[825] Griffis’s “Mikado’s Empire,” New York, 1876, p. 92.

[826] Hutchinson’s Impressions of Western Africa, London, 1858.

[827] Examination of the Toxicological Effects of Sassy-Bark, by Mitchell and Hammond (Proc. Biological Dep. Acad. Nat. Sci. Phila., 1859).—T. Lauder Brunton’s Gulstonian Lectures, 1877 (Brit. Med. Journ., March 26, 1877).

This would seem to support the theory of Dr. Patetta (Ordalie, p. 13) that the original form of the poison ordeals was the drinking of water in which a fetish had been washed, the spirit of which was thus conveyed into the person of the accused. On the other hand, there is the fact that in some of the poison ordeals sickness was a proof of innocence.

[828] London Athenæum, May 29, 1875, p. 713.

[829] Schweinfurth’s Heart of Africa, New York, 1874, Vol. II. pp. 32-36.

[830] Patetta, Le Ordalie, p. 70.

[831] Philadelphia Evening Bulletin, March 7, 1871.—Ellis’s Three Visits to Madagascar, chap. I. VI.

[832] Patetta, Le Ordalie, p. 61.

[833] Ellis’s Polynesian Researches, Vol. I. ch. 14.

[834] Königswarter, op. cit. p. 202.—E. B. Tylor, in Macmillan’s Magazine, July, 1876.

[835] Patetta, Le Ordalie, p. 61.

[836] Macpherson’s Memorials of Service in India, London, 1865, p. 83.—See also p. 364 for modes of divination somewhat akin to these.

[837] Lieut. Shaw, in Asiatic Researches, IV. 67, 84.

[838] Patetta, Le Ordalie, pp. 57, 67.

[839] Herod. II. 174.

[840] Oppert et Ménant, Documents Jurid. de l’Assyrie, Paris, 1877, pp. 93, 106, 122, 136, 191, 197, 209, 238, 242, 246, 250, 253.

It is interesting to compare with these primitive formulas the terrible imprecations which became customary in mediæval charters against those who should seek to impair their observance.

[841] Numb. xxvi. 55-6; xxxiii. 54.—Joshua xviii. 8-11; xix. 1, 10, 17, 24, 51.—I. Chron. xviii. 5-18, 31.—Nehem. x. 34; xi. 1.

[842] Josh. vii. 14-26.—I. Sam. xiv. 37-45. Cf. Michaelis, Laws of Moses, art. 304.—Ewald’s Antiq. of Israel, Solly’s Translation, pp. 294-6.—Kuenen’s Religion of Israel, May’s Translation, I. 98.

[843] Mishna, Sota ix. 9; Wagenseilii Comment. op. cit. vi. 4 (Ed. Surenhus. III. 257, 291). The curious who desire further information on the subject can find it in Wagenseil’s edition of the Tract Sota, with the Gemara of the Ain Jacob and his own copious and learned notes, Altdorf, 1674.

[844] Mishcat ul-Masabih, Matthews’s Translation, Calcutta, 1810, vol. II. pp. 221-31.

[845] Loniceri Chron. Turcic. Lib. II. cap. xvii.

[846] Königswarter, op. cit. p. 203.

[847] Collin de Plancy, Dictionnaire Infernal, s. v. _Céromancie_.

[848] The Dinkard, translated by Peshotun Dustoor Behramjee Sunjana, vol. II, p. 65, Bombay, 1876.

[849] Vendidad, Farg. IV. 156-8. If Prof. Oppert is correct in his rendering of the Medic Behistun inscription, the Zend version of the Avesta is not the original, but a translation made by order of Darius Hystaspes from the ancient Bactrian, which would greatly increase the antiquity attributable to this record of primæval Aryan thought. See “Records of the Past,” VII. 109.

[850] Firdusi, Shah-Nameh, XII. 4 (Mohl’s Translation, II. 188). Kai Kaoos was the grandfather and immediate predecessor of Cyrus.

[851] The Dabistan, Shea and Troyer’s translation, I. 219.

[852] Quoted from the Dinkard by Dr. Haug in Arda-Viraf, p. 145.

[853] Hyde Hist. vet. Persar. Relig. p. 280 (Ed. 1760). See also, Dabistan, I. 305-6.

[854] Bk. VII. st. 108.

[855] Atharva Veda II. 12 (Grill, Hundert Lieder des Atharva Veda, Tübingen, 1879, p. 16).—Khandogya-Upanishad. VI. 16 (Max Müller’s Translation, p. 108). In this latter passage there is a philosophical explanation attempted why a man who covers himself with truth is not burnt by the hot iron.

[856] Monier Williams, Indian Wisdom, 2d ed. p. 360.

[857] Man. Dharm. Sast. VIII. 114-16, 190.

[858] Institutes of Vishnu, IX.

[859] Institutes of Gautama, XIII. 1, 3, 23 (Bühler’s Translation).

So the Vasishtha Dharmasastra is equally ignorant of ordeals and even more immoral in its teaching—“Men may speak an untruth when their lives are in danger or the loss of their whole property is imminent”—Vasishtha XVI. 10, 35 (Bühler’s Translation).

[860] See Halhed’s Gentoo Code, chap. iii. §§ 5, 6, 9, 10; chap. xviii. (E. I. Company, London, 1776).—Ayeen Akbery, or Institutes of Akbar (Gladwin’s Translation, London, 1800), vol. II. pp. 496, sqq. Also a paper by Ali Ibrahim Khan, chief magistrate of Benares, communicated by Warren Hastings to the Asiatic Society in 1784 (Asiatic Researches, I. 389).

[861] Duclos, Mém. sur les Épreuves.

[862] Smith’s Dict. of Antiq. s. v. _Marlyria_.

[863] Pausan. VII. xxv. 8.

[864] Festus s. v. _Lapidem_.—Liv. I. 24; XXI. 45.—Polyb. III. xxv. 6-9.—Aul. Gell. I. 21.

[865] Liv. XXII. 53. Cf. Fest. s. v. _Præjurationes_. See an example of a similar oath taken by a whole army, Liv. ii. 45.

[866] Val. Maxim. I. i. 7; VIII. i. 5.—Ovid. Fastor. IV. 305 sqq.

[867] A scholiast on Horace, dating probably from the fifth century of our era, describes an ordeal equivalent to the _judicium offæ_. When slaves, he says, were suspected of theft they were taken before a priest who administered to each a piece of bread over which certain conjurations had been uttered and he who was unable to swallow it was adjudged guilty (Patetta, I.e Ordalie, p. 140). Not only the date of this deprives it of value as evidence of Roman custom, but also the fact that Romans might well employ such means of influencing the imagination of Barbarian or ignorant slaves.

[868] Senchus Mor. I. 25, 195. Comp. Gloss, p. 199.

[869] Anthol. IX. 125.—Cf. Julian. Imp. Epist. XVI.—Claud. in Rufinum II. 110.—Pliny describes (Nat. Hist. VII. ii.) a somewhat similar custom ascribed to the Pselli, an African tribe who exhaled an odor which put serpents to sleep. Each new-born child was exposed to a poisonous snake, when if it were legitimate the reptile would not touch it, while if adulterine it was bitten. Another version of the same story is given by Ælian (De Nat. Animal. I. lvii.).

[870] Keyser’s Religion of the Northmen, Pennock’s Translation, p. 259. The extreme simplicity of the _skirsla_ finds its counterpart in modern times in the ordeal of the staff, as used in the Ardennes and described hereafter.

[871] First Test of Pardessus, Tit. liii. lvi.

[872] Decret. Tassilon. Tit. ii. § 7.

[873] Grimm, ap. Pictet, Origines Indo-Européennes, III. 117.

[874] Annal. Saxo ann. 1039.—Ruskaia Prawda, art. 28 (Esneaux, Hist. de Russie, I. 181).

[875] L. Wisigoth. VI. i. 3.

[876] Lib. adv. Leg. Gundobadi iv. vi.

[877] Senatus Consult. de Monticolis Waliæ c. ii.

[878] A great variety of these _Ordines_ will be found in the collections of Baluze, Martène, Pez, Muratori, Spelman, and others. From these we derive most of our knowledge as to the details of the various processes.

[879] Batthyani Leg. Eccles. Hung T. I. pp. 439, 454.

[880] Anon. Chron. Slavic. cap. xxv. (S. R. German. Septent. Lindenbrog. p. 215).

[881] Hincmar. de Divort. Lothar. Interrog. VI.

[882] Dooms of King Æthelstan, iv. cap. 7.

[883] Adjuratio ferri vel aquæ ferventis (Baluz. II. 655).

[884] De Gloria Martyrum Lib. I. cap. 81.—Injecta manu, protinus usque ad ipsa ossium internodia caro liquefacta defluxit.

[885] Institutes of Vishnu, IX. 33 (Jolly’s Translation).

[886] Formulæ Exorcismorum, Baluz. II. 639 sqq.

[887] Doom concerning hot iron and water (Laws of Æthelstan, Thorpe, I. 226); Baluze, II. 644.

[888] Martene de Antiq. Eccles. Ritibus, Lib. III. c. vii. Ordo. 19.

[889] Florez, España Sagrada, XIX. 377-8.

[890] “Quia in aqua ignita coquuntur culpabiles et innoxii liberantur incocti, quia de igne Sodomitico Lot justus evasit inustus, et futurus ignis qui præibit terribilem judicem, Sanctis erit innocuus et scelestos aduret, ut olim Babylonica fornax, quæ pueros omnino non contigit.”—Interrog. vi.

[891] Vit. S. Æthelwoldi c. x. (Chron. Abingd. II. 259. M. R. Series).

[892] First text of Pardessus, Tit. liii. lvi.; MS. Guelferbyt. Tit. xiv. xvi.; L. Emend. Tit. lv. lix.

[893] L. Frision. Tlt. iii.; L. Æthelredi iv. § 6; L. Lombard. Lib. I. Tit. xxxiii. § 1.

[894] Grágás, Sect. VI. cap. 55.

[895] Ruskaia Prawda, Art. 28.

[896] Jur. Provin. Saxon. Lib. I. art. 39; Jur. Provin. Alamann. cap. xxxvii. §§ 15. 16.

[897] Du Cange.

[898] Defens. Probæ Aquæ; Frigid, §§ 167, 169, etc.

[899] J. H. Böhmer, Jus. Eccles. Protestantium T. V. p. 597.

[900] Ayeen Akbery, II. 498. This work was written about the year 1600 by Abulfazel, vizier of the Emperor Akbar. Gladwin’s Translation was published under the auspices of the East India Company in 1800. See also Ali Ibrahim Khan, in Asiatic Researches, I. 398.

[901] Ali Ibrahim Khan, loc. cit.

[902] D’Achery, Not. 119 ad Opp. Guibert. Noviogent.

[903] Vit. S. Bertrandi Convenar. No. 15 (Martene Ampliss. Collect. VI. 1029-30).

[904] Pet. Cantor. Verb. Abbrev. Not. in cap. lxxviii. (Migne’s Patrol. T. CCV. p. 471).

[905] Natur. Histor. L. VII. c. 2.

[906] “Si titubaverit, si singulos vomeres pleno pede non presserit, si quantulumcunque læsa fuerit, sententia proferatur.”—Annal. Winton. Eccles. (Du Cange, s. v. _Vomeres_). Six is the number of ploughshares specified in the celebrated trial of St. Cunigunda, wife of the emperor St. Henry II. (Mag. Chron. Belgic.). Twelve ploughshares are prescribed by the Swedish law (Legg. Scan. Provin. Lib. VII. c. 99. Ed. Thorsen. p. 170).

[907] Legg. Æthelstan. iv. § 6; Ætheldred. iii. § 7; Cnut. Secular, § 58; Henrici I. lxvi. 9.

[908] Legg. Scan. Provin. Lib. VII. c. 99 (Ed. Thorsen, pp. 170-2).

[909] Fuero de Baeça, _ap._ Villadiego, Fuero Juzgo, fol. 317_a_.

[910] Du Cange, s. v. _Ferrum candens_.

[911] Laws of Ethelstan, iv. § 7.—Adjuratio ferri vel aquæ ferventis (Baluz. II. 656).—Fuero de Baeça (_ubi sup._).

[912] For instance, see various forms of exorcism given by Baluze, II. 651-654. Also Dom Gerbert (Patrologiæ CXXXVIII. 1127); Goldast. Alamann. Antiquitat. T. II. p. 150 (Ed. Senckenberg).

[913] Petri Cantor. Verb. Abbreviat. cap. lxxviii. (Patrol. CCV. 233).

[914] Weber’s Hist. of Indian Literature, Mann & Zachariae’s Translation, p. 73.

[915] Travels of Hiouen Thsang (Wheeler, Hist. of India, III. 262).

[916] Institutes of Vishnu, XI.—Yajnavalkya II. 103-6 (Stenzler’s Translation, p. 61).

It is easy to understand the prescription of Vishnu that the fire ordeal is not to be administered to blacksmiths or to invalids, but not so easy that it was forbidden during summer and autumn (Ib. X. 25-6). Yajnavalkya, moreover, says that the ordeals of fire, water, and poison are for Sudras (II. 98).

[917] Ayeen Akbery, II. 497.—Patella, Le Ordalie, p. 106.

[918] Asiatic Researches, I. 395.

[919] Lieut. Shaw, in Asiatic Researches, IV. 69.

[920] Capit. Carol. Mag. II. ann. 803, cap. 5.

[921] Concil. Risbach. can. ix. (Hartzheim Concil. German. II. 692).

[922] L. Anglior. et Werinor. Tit. xiv.

[923] Si presbyterum occidit ... si liber est cum XII. juret; si autem servus per xii. vomeres ignitos se purget.—C. Mogunt, ann. 848 c. xxiv.

[924] Concil. Triburiens. ann. 895 c. 22 (Harduin. Concil. VI. I. 446).

[925] Laws of Ethelred, iv. § 6.

[926] The Jus Provin. Alaman. (cap. xxxvii. §§ 15, 16; cap. clxxxvi. §§ 4, 6, 7; cap. ccclxxiv.) allows thieves and other malefactors to select the ordeal they prefer. The Jus Provin. Saxon. (Lib. I. art. 39) affords them in addition the privilege of the duel.

[927] Après les serements des parties soloit lon garder la partie, et luy porter a la maine une piece de fer flambant sil fuit frank home, ou de mettre le main ou la pié en eaw boillant s’il ne fuit frank.—Myrror of Justice, cap. III. sect. 23.—Cf. Glanville, Lib. XIV. c. I.

[928] Baisse Court, cap. 132, 261, 279, 280, etc.

[929] Lesbroussart’s Oudegherst, II. 707.

[930] Radevic. de Reb. Frid. Lib. I. cap. xxvi.

[931] Rouskaïa Prawda, Art. 28.

[932] Grágás, Sect. VI. c. lv.

[933] Maitland, Pleas, etc., I. 5. Again in another case in 1207 (p. 55), while in yet another a man and woman, accomplices in the same crime, are both sent to the hot iron (p. 77). In 1203 a case occurs in which the court offers the accused the choice between red-hot iron and water, and he selects the former.—Ib. p. 30.

[934] O’Curry, _ap._ Pictet, Origines Indo-Européennes, III. 179.

[935] Regino. ann. 886.—Annales Metenses.

[936] Vit. S. Kunegundæ cap. 2 (Ludewig Script. Rer. German. I. 346-7).

[937] Gotfridi Viterbiensis Pars XVII., “De Tertio Othone Imperatore.” Siffridi Epit. Lib. I. ann. 998. Ricobaldi Hist. Impp. sub Ottone III.—The story is not mentioned by any contemporary authorities, and Muratori has well exposed its improbability (Annali d’Italia, ann. 996); although he had on a previous occasion argued in favor of its authenticity (Antiq. Ital. Dissert. 38). In convicting the empress of calumny, the Countess of Modena appeared as an accuser, making good the charge by the ordeal; but if we look upon her as simply vindicating her husband’s character, the case enters into the ordinary course of such affairs. Indeed, among the Anglo-Saxons, there was a special provision by which the friends of an executed criminal might clear his reputation by undergoing the triple ordeal, after depositing pledges, to be forfeited in cases of defeat (Ethelred, iii. § 6), just as in the burgher law of Northern Germany a relative of a dead man might claim the duel to absolve him from an accusation (Sachsische Weichbild, art. lxxxvii.). This was not mere sentiment, as in crimes involving confiscation the estate of the dead man was at stake.

[938] Giles states (note to William of Malmesbury, ann. 1043) that Richard of Devizes is the earliest authority for this story.

[939] Dudon. S. Quintini Lib. iv.

[940] Order. Vitalis Lib. X. cap. 13.

[941] Grágás, Sect. VI. cap. 45. Andreas of Lunden early in the 13th century speaks of it as formerly in vogue for these cases, but disused in his time (Legg. Scan. Provin. Ed. P. G. Thorsen, Kjobenhavn, 1853, p. 110).

[942] “E si alguna dixiere que preñada es dalguno, y el varon no la creyere, prenda fierro caliente; e si quemada fuere, non sea creyda, mas si sana escapare del fierro, de el fijo al padre, e criel assi como fuero es.”—Fuero de Baeça (Villadiego, Fuero Juzgo, fol. 317_a_).

[943] Roger of Wendover, ann. 1085.

[944] Eadmeri Hist. Novor. Lib. II. (Migne, CLIX. 412).

[945] Gudeni Cod. Diplom. Mogunt. T. I. No. liii.

[946] Mazure et Hatoulet, Fors de Béarn, p. xxxviii.

[947] Hyde Relig. Vet. Persar. cap. xxiv. (Ed. 1760, pp. 320-1).

[948] Widukindi Lib. III. cap. 65.—Sigebert. Gemblac. Ann. 966.—Dithmari Chron. Lib. II. cap. viii.—Saxo. Grammat. Hist. Danic. Lib. X. The annalists of Trèves claim the merit of this for their archbishop Poppo, whose pontificate lasted from 1016 to 1047. According to their legend, Poppo not only drew on an iron gauntlet heated to redness, but entered a fiery furnace clad only in a linen garment soaked in wax, which was consumed by the flames without injury to him.—Gest. Trevir. Archiep. cap. xvi. (Martene Ampliss. Collect. IV. 161).

[949] Guibert. Noviogent. de Incarnat. contra Judæos Lib. III. cap. xi. Guibert states that he had this from a Jew, who was an eye-witness of the fact.

Somewhat similar was a volunteer ordeal related by Gregory of Tours, when a Catholic disputing with an Arian threw his gold ring into the fire and when heated to redness placed it in his palm with an adjuration to God that if his faith was true it should not hurt him, which of course proved to be the case.—Greg. Turon. de Gloria Confess, c. xiv.

[950] Legend, de S. Olavo (Langebek II. 548).

[951] Cæsar. Heisterbach. Dial. Mirac. Dist. III. c. xvi. xvii.

[952] Raine’s Church of York (English Historical Review, No. 9, p. 159).

[953] Legg. Scan. Provin. Lib. v. c. 57 (Ed. Thorsen, pp. 139-40).

[954] This text is given by Kausler, Stuttgard, 1839, together with an older one compiled for the lower court of Nicosia.

[955] Pardessus, Us et Coutumes de la Mer, I. 268 sqq.

[956] Patetta, Le Ordalie, p. 475.

[957] Du Cange, s. v. _Ferrum Candens_.

[958] Pachymeri Hist. Mich. Palæol. Lib. I. cap. xii.

[959] Raynouard, Monuments relatifs à la Condamn. des Chev. du Temple, p. 269.

[960] Bonif. de Morano Chron. Mutinense. (Muratori Antiq. Ital. Diss. 38).

[961] Malleus Maleficar. Francof. 1580, pp. 523-31.

[962] P. Burgmeister, who relates this in his thesis for the Doctorate (De Probat. per aquam, &c. Ulmæ, 1680), vigorously maintains the truth of the miracle against the assaults of a Catholic controversialist who impugned its authenticity. The affair seems to have attracted considerable attention at the time, as a religious question between the old Church and the Lutherans.

[963] Cæsar. Heisterb. Dial. Mirac. Dist. X. c. xxxvi.

[964] Godelmanni de Magis Lib. III. cap. v. § 19.

[965] Annalista Saxo ann. 993.

[966] Thus Rabelais, “en mon aduiz elle est pucelle, toutesfoys ie nen vouldroys mettre mon doigt on feu” (Pantagruel, Liv. II. chap. xv.); and the Epist. Obscur. Virorum (P. II. Epist. 1) “Quamvis M. Bernhardus diceret, quod vellet disputare ad ignem quod hæc est opinio vestra.”

[967] Ali Ibrahim Khan (Asiatic Researches, I. 390).

[968] Wheeler’s Hist. of India, III. 262.

[969] Targum of Palestine, Gen. xi. (Etheridge’s Translation, I. 191-2).—Shalshelet Hakkabala fol. 8_a_. (Wagenseilii Sota p. 192-3).

[970] Daniel, iii. 19-28.

[971] Rufini Historia Monachorum cap. ix.

[972] Theodori Lector. H. E. Lib. II.

[973] Greg. Turon. Hist. Francor. II. 1.—Ejusd. de Gloria Confess. 76.—S. Hildefonsi Toletani Lib. de Viris Illustribus c. iii.

[974] Quodsi servus in ignem manum miserit, et læsam tulerit, etc.—Tit. XXX. cap. i.; also Tit. XXXI.

[975] Vit. S. Johannis Gualberti c. lx.-lxiv.—Berthold. Constantiens. Annal. ann. 1078.

[976] Landulph. Jun. Hist. Mediol. cap. ix. x. xi. (Rer Ital. Script. T. V.).—Muratori, Annal. Ann. 1103, 1105.

[977] Cæsar. Heisterb. Dial. Mirac. Dist. x. c. xxxiv.—The same incident is related of St. Francis of Assisi (Vita et Admiranda Historia Seraphici S. P. Francisci, Augsburg, 1694, xxiii).

[978] Fulcher. Carnot. cap. x.; Radulf. Cadomensis cap. c. ci. cii. cviii.; Raimond. de Agiles (Bongars, I. 150-168). The latter was chaplain of the Count of Toulouse, and a firm asserter of the authenticity of the lance. He relates with pride, that on its discovery he threw himself into the trench and kissed it while the point only had as yet been uncovered. He officiated likewise in the ordeal, and delivered the adjuration as Peter entered the flames: “Si Deus omnipotens huic homini loquutus est facie ad faciem, et beatus Andreas Lanceam Dominicam ostendit ei, cum ipse vigilaret, transeat iste illæsus per ignem. Sin autem aliter est, et mendacium est, comburatur iste cum lancea quam portabit in manibus suis.” Raoul de Caen, on the other hand, in 1107 became secretary to the chivalrous Tancred, and thus obtained his information from the opposite party. He is very decided in his animadversions on the discoverers. Foulcher de Chartres was chaplain to Baldwin I. of Jerusalem, and seems impartial, though sceptical.

The impression made by the incident on the popular mind is manifested in the fact that the Nürnberg Chronicle (fol. cxcv.) gives a veritable representation of the lance-head.

[979] Raynaldi Annal. Eccles. ann. 1219, c. 56.

[980] Martyrol. Roman. 19 Jun.—Petri Damian. Vit. S. Romualdi c. 27.

[981] Petri Cantor. Verb. Abbreviat. cap. lxxviii. (Patrol. CCV. 229).

[982] Cæsar. Heisterbach. Dial. Mirac. Dist. III. c. xv.

[983] Luca Landucci, Diario Fiorentino, pp. 166-9.—Burlamacchi, Vita di Savonarola (Baluz. et Mansi I. 559-63).—Processo Autentico (Baluz. et Mansi I. 535-42).—Villari, Storia di Gir. Savonarola, II. App. lxxi. lxxv. lxxx. lxxxiii. xc.-xciii.—Diarium Burchardi ann. 1498.—Guicciardini, III. vi.

[984] Roderici Toletani de Reb. Hispan. VI. xxvi. (see ante p. 132).

[985] Pet. Val. Cernaii Hist. Albigens. cap. III.

[986] Niceph. Gregor. Lib. VI.

[987] Chron. Samaritan. c. xlv. (Ed. Juynboll, Lug. Bat. 1848, p. 183).

[988] Dathavansa, chap. III. 11-13 (Sir M. Coomara Swamy’s Translation, London, 1874).

[989] Plinii Hist. Natur. L. VII. c. ii.

[990] Gospel of the Infancy, III.

[991] Concil. Cæsar-August. II. ann. 592 c. 2.

[992] Martene de Antiquis Ecclesiæ Ritibus Lib. III. c. viii. § 2.

[993] Chron. Casinensis Lib. II. c. xxxiv.

[994] Matthew of Westminster, ann. 1065.

[995] Olaf Haraldss. Saga, ch. 258 (Laing’s Heimskringla, II. 349).

[996] Guibert. Noviogent. de Vita sua Lib. III. cap. xxi.

[997] Chron. Andrensis Monast. (D’Achery Spicileg. II. 782).

[998] Villanueva, Viage Literario, T. XIX. p. 42.

[999] Patetta, Le Ordalie, p. 34.

[1000] Hincmar. de Divort. Lothar. Interrog. vi. It may readily be supposed that a skilful management of the rope might easily produce the appearance of floating, when a conviction was desired by the priestly operators.

[1001] L. Æthelstani I. cap. xxiii.

[1002] Martene de Antiq. Eccles. Ritibus Lib. III. c. vii. Ordo 8.

[1003] Petri Cantor. Verb. Abbreviat. cap. lxxviii. (Patrol. CCV. 233).

[1004] De Divort. Lothar. Interrog. vi.

[1005] Ordo S. Dunstani Dorobern. (Baluze II. 650).

[1006] Institutes of Vishnu IX. 29-30, XII.--Yajnavalkya II. 98, 108-9.—Ayeen Akbery, II. 497.—Some unimportant variations in details are given by Ali Ibrahim Khan (As. Researches, I. 390). Hiouen Thsang describes a variant of this ordeal in which the accused was fastened into one sack and a stone in another; the sacks were then tied together and cast into a river, when if the man sank and the stone rose he was convicted, while if he rose and the stone sank he was acquitted (Wheeler’s Hist. of India, III. 262).

[1007] Canciani Legg. Barbar. T. I. pp. 282-3.—Martene de Antiq. Eccles. Ritibus Lib. III. c. vii. Ord. 9, 16.

[1008] Baluze II. 646.—Mabillon Analect. pp. 161-2 (_ap._ Cangium).—Muratori Antiq. Ital. Diss. 38.—Jureti Observat. ad Ivon. Epist. 74. An Ordo printed by Dr. Patetta from an early tenth century MS. (Archivio Giuridico, Vol. XLV.) mixes up Popes Eugenius and Leo, the Emperor Leo and Charlemagne in a manner to show how exceedingly vague were the notions concerning the introduction of the ordeal, “Incipit juditium aqua frigida. Quod dominus eugenius et leo imperator et episcopi vel abbati sive com ti fecerunt.... Similiter fecit domnus carolus imperator pro domnus leo papa, etc.”

[1009] Lib. adv. L. Gundobadi cap. ix.—Lib. contra Judic. Dei. c. i.

[1010] Arguments for its earlier use in Europe have been drawn from certain miracles related by Gregory of Tours (Mirac. Lib. I. c. 69-70), but these relate to innocent persons unjustly condemned to drowning, who were preserved, and therefore these cases have no bearing on the matter. The Epistle attributed by Gratian to Gregory I. (c. 7 § 1 Caus. II. q. v.), in which the cold-water ordeal is alluded to, has long since been restored to its true author, Alexander II. (Epist. 122).

[1011] Capit. Wormat. ann. 829, Tit. II. cap. 12.—L. Longobard. Lib. II. Tit. lv. § 31.

[1012] De Divort. Lothar. Interrog. vi.

[1013] Assisa facta apud Clarendune §§ 1, 2.—Assisa apud Northamtoniam (Gesta Henrici II. T. II. p. cxlix.; T. I. p. 108.—M. R. Series).

[1014] Opusc. adv. Hincmar. Laudun. cap. xliii.

[1015] L. Longobard. Lib. I. Tit. ix. § 39.

[1016] Recess. Convent. Alsat. anno 1051, § 6 (Goldast. Constit. Imp. II. 48).

[1017] De Legg. Angliæ Lib. XIV. cap. i.

We have seen above (p. 292), however, that this rule was by no means invariable. In addition to the cases there adduced another may be cited when in 1177 a citizen of London who is qualified as “nobilissimus et ditissimus,” accused of robbery, was tried by the water ordeal, and on being found guilty offered Henry II. five hundred marks for a pardon. The dazzling bribe was refused, and he was duly hanged.—Gesta Henrici II. T. I. p. 156.

[1018] Regiam Majestatem Lib. IV. cap. iii. § 4.

[1019] Text. Herold. Tit. LXXVI.

[1020] Mazure et Hatoulet, Fors de Béarn, p. xxxi.

[1021] Conrad. Ursperg. sub. Lothar. Saxon.

[1022] Quidam illustris vir.—Othlon. de Mirac. quod nuper accidit etc. (Migne’s Patrol. T. CXL. p. 242).

[1023] Concil. Ausonens. ann. 1068 can. vii. (Aguirre, IV. 433).

[1024] Juris Feud. Alaman. cap. lxxvii. § 2.—Jur. Prov. Saxon. Lib. III. c. 21.

[1025] MS. Brit. Mus. quoted by Pertz in Hugo. Flaviniac. Lib. II.

[1026] Hermann. de Mirac. S. Mariæ Laudun. Lib. III. cap. 28.

[1027] Lodharius ... Gerbergam, _more maleficorum_, in Arari mergi præcepit.—Nithardi Hist. Lib. I. ann. 834.

[1028] Plinii Natur. Histor. L. VII. c. ii.

[1029] Ameilhon, de l’Épreuve de l’Eau Froide.

[1030] In earlier times, various other modes of proof were habitually resorted to. Among the Lombards, King Rotharis prescribed the judicial combat (L. Longobard. Lib. I. Tit. xvi. § 2). The Anglo-Saxons (Æthelstan. cap. VI.) direct the triple ordeal, which was either red-hot iron or boiling water.

[1031] Regest. Ludovici Hutini (_ap._ Cangium).

[1032] Mall. Maleficarum.

[1033] Wieri de Præstigiis Dæmonum pp. 589, 581.

[1034] Scribonii Epist. de Exam. Sagarum. Newald Exegesis Purgat. Sagarum. These tracts, together with Rickius’s “Defensio Probæ Aquæ Frigidæ,” were reprinted in 1686 at Leipsic, in 1 vol. 4to.

[1035] De Magor. Dæmonomania, Basil. 1581, pp. 372, 385.

[1036] Binsfeldi Tract. de Confess. Malefic. pp. 287-94 (Ed. 1623). He argues that, as the proceeding was unlawful, confessions obtained by means of it were of no legal weight.

[1037] Wieri _op. cit._ p. 589.

[1038] Godelmanni de Magis Lib. III. cap. v. §§ 30, 35.

[1039] P. Burgmeister Dissert. de Probat. per aquam, etc. Ulmæ, 1680, § 44. Burgmeister adopts the explanation of Binsfeld to account for the cases in which witches floated.

[1040] Königswarter, _op. cit._ p. 176.—Bochelli Decr. Eccles. Gallicanæ, Paris, 1609, p. 1211.

[1041] “Porro, nostra memoria, paucis abhinc annis, solebant judices reos maleficii accusatos mergere, pro certo habentes incertum crimen hac ratione patefieri.”—Notæ ad Legem Salicam.

[1042] Tanquam aqua suum in sinum eos non admitteret, qui excussa baptismi aqua se omni illius sacramenti beneficio ultro orbarunt.—Dæmonologiæ Lib. III. cap. vi.

[1043] Rogers’ Scotland, Social and Domestic, p. 266 (Grampian Club, 1869).

[1044] Dissert. Inaug. de Torturis Th. XVIII. § xi. Basil. 1661.

[1045] N. Brandt de Legitima Maleficos et Sagas investigandi et convincendi ratione, Giessen, 1662.

[1046] P. Burgmeister Dissert. de Probat. per aquam ferventem et frigidam, §§ 29, 39-41, Ulmæ, 1680.

[1047] Le Brun, Histoire critique des Pratiques Superstitieuses, pp. 526-36 (Rouen, 1702).

[1048] F. M. Brahm de Fallacibus Indiciis Magiæ, Halæ Magdeburg. 1709.

[1049] J. C. Nehring de Indiciis, Jenæ, 1714.

[1050] J. H. Böhmer, Jur. Eccles. Protestant. T. V. p. 608.

[1051] Per aquam, tum frigidam ut hodiernum passim in sagarum inquisitionibus.—Eph. Gerhardi Tract. Jurid. de Judic. Duellico, cap. i. § 4 (Francof. 1735).

[1052] Antiq. Ital. Dissert. 38.

[1053] Qui ex levi suspicione, in tali crimine delatas, nec confessas, nec convictas, ad torturas, supernatationem aquarum, et alia eruendæ veritatis media, tandem ad ipsam mortem condemnare ... non verentur, exempla proh dolor! plurima testantur.—Synod. Culmens. et Pomesan. ann. 1745, c. v. (Hartzheim Concil. German. X. 510).

[1054] Meyer, Institutions Judiciaires, I. 321.

[1055] Königswarter, op. cit. p. 177.

[1056] Spottiswoode Miscellany, Edinburgh, 1845, II. 41.

[1057] V. Bogisic, in Mélusine, T. II. pp. 6-7.

[1058] Hartausen, Études sur la Russie (Du Boys, Droit Criminel des Peuples Modernes, I. 256).

[1059] Institutes of Vishnu, X.—In the code of Yajnavalkya (II. 100-102) there are some differences in the process, but the statement in the text is virtually the same as that in the Ayeen Akbery (II. 486) as in force in the seventeenth century.

[1060] Rickii Defens. Probæ Aq. Frigidæ, § 41.

[1061] Collin de Plancy, Diet. Infernal, s. v. _Bibliomancie_.

[1062] Kœnigswarter, _op. cit._ p. 186.

[1063] J. H. Böhmer, Jur. Eccles. Protestant. T. V. p. 608.

[1064] E. B. Tylor in Macmillan’s Magazine, July, 1876.

[1065] Formulæ Bignonianæ, No. xii.

[1066] Vit. S. Lamberti (Canisii et Basnage, II. 140).—Pseudo Bedæ Lib. de Remed. Peccator. Prologus (Wasserschleben, Bussordnungen, Halle, 1851, p. 248).

[1067] Capit. Pippini ann. 752, § xvii.

[1068] Chart. Division, cap. xiv. Capit. ann. 779, § x.; Capit. IV. ann. 803, §§ iii. vi.; in L. Longobard. Lib. II. Tit. xxviii. § 3; Tit. lv. § 25, etc.

[1069] Ughelli Italia Sacra T. V. p. 610 (Ed. 1653).

[1070] Capit. Car. Mag. incerti anni c. x. (Hartzheim. Concil. German. I. 426).

[1071] Capit. Lud. Pii ann. 816, § 1 (Eccardi L. Francorum, pp. 183, 184).

[1072] Rudolph. Fuldens. Vitæ S. Liobæ cap. xv. (Du Cange, s. v. _Crucis Judicium_).

[1073] Concil. Aquisgran. cap. xvii.

[1074] L. Longobard. Lib. II. Tit. lv. § 32.

[1075] Not. ad Libb. Capit. Lib. I. cap. 103. This derives additional probability from the text cited immediately above, relative to the substitution of this ordeal for the duel, which is given by Eckhardt from an apparently contemporary manuscript, and which, as we have seen, is attributed to Louis le Débonnaire in the very year of the Council of Aix-la-Chapelle. It is not a simple Capitulary, but an addition to the Salic Law, which invests it with much greater importance. Lindenbruck (Cod. Legum Antiq. p. 355) gives a different text, purporting likewise to be a supplement to the Law, made in 816, which prescribes the duel in doubtful cases between laymen, and orders the ordeal of the cross for ecclesiastical causes—“in Ecclesiasticis autem negotiis, crucis judicio rei veritas inquiratur”—and allows the same privilege to the “imbecillibus aut infirmis qui pugnare non valent.” Baluze’s collection contains nothing of the kind as enacted in 816, but under date of 819 there is a much longer supplement to the Salic law, in which cap. x. presents the same general regulations, almost verbatim, except that in ecclesiastical affairs the testimony of witnesses only is alluded to, and the _judicium crucis_ is altogether omitted. The whole manifestly shows great confusion of legislation.

[1076] Chart. Divisionis ann. 837, cap. 10.

[1077] Meyer, Recueil d’Anciens Textes, Paris, 1874, p. 12.

[1078] Sir John Shore, in Asiatic Researches, IV. 362.

[1079] Half an ounce, according to a formula in a MS. of the ninth century, printed by Dom Gerbert (Migne’s Patrolog. CXXXVIII. 1142).

[1080] Baluze II. 655.

[1081] Muratori, Antiq. Ital. Dissert. 38.—For three other formulas see _Fasciculus Rerum Expetendarum et Fugiendarum_, Ed. 1690, II. 910.

[1082] Martene de Antiq. Eccles. Ritibus Lib. III. c. vii. Ordo 15.

[1083] Decam. Giorn. VIII. Nov. 6.

[1084] This account, with unimportant variations, is given by Roger of Wendover, ann. 1054, Matthew of Westminster, ann. 1054, the Chronicles of Croyland, ann. 1053, Henry of Huntington, ann. 1053, and William of Malmesbury, Lib. II. cap. 13, which shows that the legend was widely spread and generally believed, although the Anglo-Saxon Chronicle, ann. 1052, and Roger de Hoveden, ann. 1053, in mentioning Godwin’s death, make no allusion to its being caused in this manner. A similar reticence is observable in an anonymous Life of Edward (Harleian MSS. 526, p. 408 of the collection in M. R. Series), and although this is perhaps the best authority we have for the events of his reign, still the author’s partiality for the family of Godwin renders him not altogether beyond suspicion.

No great effort of scepticism is requisite to suggest that Edward, tired of the tutelage in which he was held, may have made way with Godwin by poison, and then circulated among a credulous generation the story related by the annalists.

[1085] Lives of Edward the Confessor, p. 119 (M. R. Series).

[1086] Dooms of Ethelred, IX. § 22; Cnut. Eccles. Tit. v.

[1087] Alium examinis modum, nostro etiamnunc sæculo, sæpe malo modo usitatum.—Cod. Legum Antiq. p. 1418.

[1088] De Mirac. S. Benedicti. Lib. I. c. v.

[1089] Gesta Treverorum, continuat. I. (Migne’s Patrol. CLIV. 1205-6).

[1090] Ayeen Akbery, II. 498.

[1091] Ali Ibrahim Khan (Asiatic Researches, I. 391-2).

[1092] Lieut. Shaw in As. Researches, IV. 80.

[1093] Institutes of Vishnu, XIV.—Yajnavalkya, II. 112-13.

[1094] Vitodurani Chron. ann. 1336.

[1095] Roger of Wendover, ann. 1051.

[1096] Cæsar. Heisterbacens. Dial. Mirac. Dist. II. c. v.

[1097] Ibid. Dist. IX. c. xxxviii.

[1098] Baluz. et Mansi Miscell. II. 575.

[1099] Rod. Glabri Hist. Lib. V. cap. i.

[1100] Greg. Turon. Hist. Lib. X. cap. 8.

[1101] Dooms of Ethelred, X. § 20; Cnut. Eccles. Tit. V.

[1102] C. 23, 26 Caus. II. q. v.

[1103] Reginonis Continuat. ann. 941.

[1104] Dithmari Chron. Lib. II.

[1105] Hist. Archiep. Bremens. ann. 1051.—Lambert. Hersfeld. ann. 1050.—Hartzheim. Concil. German. III. 112.

[1106] Regino ann. 869.—Annal. Bertiniani.

[1107] Helgaldi Epitome Vitæ Roberti Regis.

[1108] Duclos, Mémoire sur les Épreuves.

[1109] Lambert. Hersfeld. ann. 1077.

[1110] This anecdote rests on good authority. Peter Damiani states that he had it from Hildebrand himself (Opusc. XIX. cap. vi.), and Calixtus II. was in the habit of relating it (Pauli Bernried. Vit. Greg. VII. No. 11).

[1111] Bernald. Constant. Chron. ann. 1077.

[1112] Hugon. Flaviniac. Chron. Lib. II. ann. 1080.—Lambert. Hersfeld. ann. 1076.

[1113] Ciruelo, Reprovacion de las Supersticiones, P. II. cap. vii. Barcelona, 1628. The first edition appeared in 1539 at Salamanca.

[1114] Del Rio Disquis. Magic. L. IV. c. iv. q. 3.—P. Kluntz Dissert, de Probat. per S. Eucharist. Ulmæ, 1677.

[1115] Ayeen Akbery, II. 498. This form of ordeal is allowed for all the four castes.

[1116] Ali Ibrahim Khan (As. Researches I. 392).

[1117] “Sors enim non aliquid mali est, sed res est in dubitatione humana divinam indicans voluntatem.”—S. Augustini Enarrat. in Psal. XXX. Serm. ii. §13.—Gratian. c. I. Caus. XXVI. q. ii.—Gratian, however, gives an ample array of other authorities condemning it.

[1118] Ad ignem seu ad sortem se excusare studeat.—Tit. XXXI. § 5.

[1119] Pact. Childeberti et Chlotarii, ann. 593, § 5: “Et si dubietas est, ad sortem ponatur.” Also § 8: “Si litus de quo inculpatur ad sortem ambulaverit.” As in § 4 of the same document the _æneum_ or hot-water ordeal is provided for freemen, it is possible that the lot was reserved for slaves. This, however, is not observed in the Decret. Chlotarii, ann. 595, § 6, where the expression, “Si de suspicione inculpatur, ad sortem veniat,” is general in its application, without reservation as to station.

[1120] Ecgberti Excerpt. cap. lxxxiv. (Thorpe, II. 108).

[1121] Conc. Calchuth. can. 19 (Spelman. Concil. Brit. I. 300).

[1122] Leon. PP. IV. Epist. VIII. c. 4 (Gratian, c. 7. Caus. XXVI. q. v.).

[1123] L. Frision. Tit. XIV. §§ 1, 2. This may not improbably be derived from the mode of divination practised among the ancient Germans, as described by Tacitus, De Moribus German, cap. x.

[1124] Sullivan, _ap._ Pictet, Origines Indo-Européennes, III. 179.

[1125] When used for purposes of divining into the future, these practices were forbidden. Thus, as early as 465, the Council of Vannes denounced those who “sub nomine fictæ religionis quas sanctorum sortes vocant divinationis scientiam profitentur, aut quarumcumque scripturarum inspectione futura promittant,” and all ecclesiastics privy to such proceedings were to be expelled from the church (Concil. Venet. can. xvi.). This canon is repeated in the Council of Agde in 506, where the practice is denounced as one “quod maxime fidem catholicæ religionis infestat” (Conc. Agathens. can. xlii.); and a penitential of about the year 800 prescribes three years’ penitence for such acts.—Ghaerbaldi Judicia Sacerdotalia c. 29 (Martene Ampl. Coll. VII. 33).

[1126] Baldric. Lib. I. Chron. Camerac. cap. 21 (Du Cange, s. v. _Sors_).

[1127] Decret. Caus. XXVI. q. ii.

[1128] Concil. Barcinon. II. ann. 599 c. 3.

[1129] Goll, Quellen und Untersuchungen, II. 99-105.

[1130] Hist. Monast. de Abingdon. Lib. I. (M. R. Series I. 89).

[1131] Grimm’s Teutonic Mythology, Stallybrass’s Translation, p. 1109.

[1132] E. B. Tylor on Ordeals and Oaths (Macmillan’s Mag. July, 1876).

[1133] Patetta, Le Ordalie, p. 216.

[1134] Grimm’s Teutonic Mythology, pp. 1108-9. Grimm quotes Theocritus and Lucian to show that similar forms of divination with a sieve were familiar in classical antiquity.

[1135] Inderwick, Side-lights on the Stuarts, p. 152.

[1136] Patetta, Le Ordalie, p. 158.

[1137] Carena, Tractatus de Officio Sanctiss. Inquisit. P. II. Tit. xii. § xxii. In Carena’s first edition (Cremona, 1636) there is no allusion to the subject. His attention apparently was attracted to it by a case occurring at Cremona in 1636, where he was acting as criminal judge. In this, Gonsalvo de Cremona, the clerical governor of Cremona, applied to the Council of Milan in February for instructions and received an unsatisfactory reply. He returned to the charge in June and was effectually snubbed by the following:—

“Philippus IV. Hispaniarum Rex et Mediolani Dux.

“Dilectiss. Noster: satis fuit responsum litteris quas die 28 Febr. proxime præteriti scripsistis ad magnificum Senatus nostri præsidem de nece Juliæ Bellisellæ et Jo. Baptisti Vicecomitis, cujus ex vulneribus sanguis exivit in conspectu Vespasiani Schitii, non autem Gasparis Picenardi, pariter suspectorum eius facinoris. Igitur novissimis litteris quibus petiistis vobis dici quid de ea re sentiamus nihil est quod præterea respondeamus nisi ut meliora quæratis indicia et juxta ea procedatis ad expeditionem causæ, referendo referenda.

“Mediolani 3 Julii, 1636.”

[1138] Marsilii Ficini de Immortal. Animæ Lib. XVI. c. 5.—Del Rio, Magicarum Disquisit. Lib. I. cap. iii. Q. 4, ¶ 6.—C. C. Oelsner de Jure Feretri cap. I. § 6 (Jenæ, 1711).

The passage relied on has usually a much less decent significance ascribed to it—

“Idque petit corpus mens, unde ’st saucia amore: Namque omnes plerumque cadunt in volnus et illam Emicat in partem sanguis unde icimur ictu, Et si cominus est hostem ruber occupat humor.” De Rer. Nat. IV. 1041-44.

[1139] Gamal. ben Pedazhur’s Book of Jewish Ceremonies, London, 1738, p. 11.

[1140] Roger de Hoveden, ann. 1186; Roger of Wendover; Benedicti Abbatis Gesta Henricii II. ann. 1189.

[1141] Scott’s Minstrelsy of the Scottish Border.

[1142] Nam ut in homicidio occulto sanguis e cadavere, tangente homicida, erumpit, quasi cœlitus poscens ultionem.—Demonologiæ Lib. III. c. vi.

[1143] Scott’s notes to the ballad of Earl Richard.

[1144] Cobbett’s State Trials, XI. 1371.

[1145] Spottiswoode Miscellanies, II. 69.

[1146] Alphonsi de Spina Fortalicium Fidei Lib. III. consid. vii.

[1147] Vitodurani Chron. ann. 1331.

[1148] Swartii Chron. Ottbergensis § xlvii. (Paullini Antiq. Germ. Syntagma).

[1149] Val. Anshelm, Berner-Chronik, ann. 1503 (Bern, 1886, II. 393).

[1150] Oelsner de Jure Feretri c. iii. § 8. This little thesis was written in 1680. It seems to have met with approval, for it was reprinted in 1711 and 1735.

[1151] Oelsner _op. cit._ cap. iii. § 7. A variant of this story is told by Scott in his notes to the “Minstrelsy of the Scottish Border.” In this the bone chances to be fished up from a river, where it had lain for fifty years, and the murderer, then an old man, happens to touch it, when it streams with blood. He confesses the crime and is duly condemned.

[1152] Carena, _op. cit._ P. II. Tit. xii. § 22.

[1153] Oelsner, cap. iii. § 6. Joh. Christ. Nehring de Indiciis, Jenæ, 1714, p. 19.—Königswarter (_op. cit._ p. 183) tells us that this custom was observed also in the Netherlands and throughout the North.

[1154] Unde forte contingit ut occisi hominis vulnus etiam jacente cadavere, in eum qui vulneraverat, si modo ille comminus instet, vulnus ipsum inspiciens, sanguinem rursus ejiciat, quod quidem evenire nonnunquam Lucretius affirmavit et judices observarunt.—De Immortalitate Animæ Lib. XVI. c. 5.

[1155] Marsil. Pract. Criminal. (_ap._ Binsfeld, de Confess. Maleficar. pp. 111-12).

[1156] Carena, _loc. cit._

[1157] Patetta, Le Ordalie, p. 34.

[1158] Cujus rei rationem petunt e causis naturalibus et reddere conatur Petrus Apponensis; quæ qualescunque tandem hæ sint, constat evenisse sæpe, et magnis autoribus tradita exempla.—B. d’Agentré Comment, in Consuet. Britann. p. 145 (Ed. Antverp. 1644).

[1159] Carena, _loc. cit._—Oelsner, _op. cit._ c. iv. § 2.

[1160] Carena, _loc. cit._ A similar dramatic exhibition by a corpse is recorded in a case occurring in Germany in 1607.—Oelsner, c. iii. § 5.

[1161] I owe this account to the kindness of L. S. Joynes, M.D., of Richmond, who informs me that he found it while examining the Accomac County records.

[1162] Annual Register for 1767, pp. 144-5.

[1163] Dunglison’s Human Physiology, 8th Edition, II. 657.

[1164] Phila. Bulletin, April 19, 1860.—N. Y. World, June 5, 1868.—Phila. North American, March 29, 1869.

[1165] Oelsner, _op. cit._ cap. i. § 10; c. iii. § 8.

[1166] Malleus Maleficarum, Francof. 1580, pp. 21, 32.

[1167] Magicarum Disquisit. Lib. I. cap. iii. Q. 4, ¶ 6.

[1168] Tract. de Officio Sanctiss. Inquisit. P. II. Tit. xii. § 22.—“Sed utcunque sit certum est in judiciis passim fuisse practicatum indicium istud sanguinis emissi sufficere ad torturam si doctoribus nostris credendum est.”

[1169] De Jure Feretri, cap. ii.

[1170] Oelsner, _op. cit._ c. iv. §§ 2, 3. Cf. Zangeri Tract. de Quæstionibus cap. ii. n. 160.—It is perhaps worthy of remark that the earlier jurists made no allusion to it. Angelus Aretinus, Albertus de Gandavo, and Bonifacius de Vitellinis, in discussing the proofs requisite to justify torture, do not mention it.

[1171] As late as 1678, an anonymous _Praxis Criminalis_, printed at Altenburg, speaks of it as a recognized process, gives instructions as to the cautions requisite, and says the record must be sent to the magistrate (Ib. c. i. § 11).—In 1714, Nehring (De Indiciis, Jenæ, 1714, pp. 42-3) still quotes authorities in favor of its justifying torture, and feels obliged to argue at some length to demonstrate its inadequacy.

[1172] Martene de antiq. Ecclesiæ Ritibus, Lib. III. c. vii. Ordo 8, 16.

[1173] Hesiodi Theogonia, v. 794-806.

[1174] August. Epist. lxxviii. §§ 2, 3 (Ed. Benedict.).—“Ut quod homines invenire non possunt de quolibet eorum divino judicio propaletur.”

[1175] Decreti c. 6, Caus. II. q. v.—Gregor. PP. I. Homil XXXII. in Evangel. cap. 6.

Dr. Patetta (Ordalie, p. 15) informs us that in some parts of Piedmont it is still believed that a perjurer will die within the year.

[1176] Munionis Histor. Compostellan. Lib. I. cap. 2, § 2.

[1177] Gregor. Turon. De Gloria Martyrum cap. 58, 103.

[1178] Sancta enim adeo est, ut nullus, juramento super eam præstito, impune et sine periculo vitæ suæ possit affirmare mendacium.—Hist. Monast. Abing. Lib. I. c. xii. (M. R. Series).

[1179] Radulph. Tortarii Mirac. S. Benedicti cap. xxii. (Migne’s Patrol. T. CLX. p. 1210).

[1180] Gregor. Turon. de Glor. Confess. c. xxix.

[1181] Chambers’s Book of Days, I. 384.

[1182] Patetta, Le Ordalie, p. 34. In Tonga and Samoa false oaths taken on certain sacred articles are likewise believed to be followed by speedy death (Ib. p. 63).

[1183] Vit. S. Bertrandi Convenar. No. 26 (Martene Ampliss. Collect. VI. 1035).

[1184] Cæsar. Heisterbach. Dial. Mirac. Dist. IV. c. lviii.

[1185] Institutes of Vishnu XIII.—Yajnavalkya, II. 110-111. Yajnavalkya classes it among the ordeals reserved for the Sudra caste (Ib. II. 98).

[1186] Ayeen Akbery, II. 497.

[1187] Ali Ibrahim Khan (As. Researches, I. 391).

[1188] Wheeler’s India, III. 262.

[1189] Ali Ibrahim Khan, _ubi sup._

[1190] Fratricidas autem et parricidas sive sacerdotum interfectores ... per manum et ventrem ferratos de regno ejiciat ut instar Cain jugi et profugi circueant terram.—Leg. Bracilai Boæmor (Annal. Saxo ann. 1039). So also a century earlier for the murder of a chief.—Concil. Spalatens. ann. 927, can. 7 (Batthyani, I. 331).

[1191] De Successoribus S. Hidulfi cap. xviii. (Patrolog. CXXXVIII. p. 218). A similar case attested the sanctity of St. Mansuetus (Vit. S. Mansueti Lib. II. c. 17.—Martene et Durand. Thesaur. III. 1025).

[1192] Folcardi Mirac. S. Bertin. Lib. I. c. 4.

[1193] Batthyani, Legg. Eccles. Hung. T. I. p. 413. See also Mirac. S. Swithuni c. ii. § 32.—Mirac. S. Yvonis c. 21 (Patrol. CLV. 76, 91). Various other instances may be found in Muratori, Antiq. Med. Ævi, Diss. 23. Charlemagne seems to have considered it a deception to be restrained by law.—Car. Mag. cap. I. ann. 789, § lxxvii.

[1194] Martene de antiquis Ecclesiæ Ritibus Lib. I. cap. vi. art. 4 n. 12.

[1195] Cæsar. Heisterb. Dial. Mirac. Dist. XI. c. xxvii. xxix.

[1196] Greg. Turonens. Vitæ Patrum, Cap. viii. n. 10.

[1197] Bernald. Vit. S. Gerald. cap. xv. (Baluz et Mansi I. 134).

[1198] Socratis Hist. Eccles. Lib. I. c. 25.

[1199] Theodori Lector. H. E. Lib. II. When, about the year 500, St. Avitus bishop of Vienne was disputing with the Arians before King Gundobald, he offered to leave the decision as to the rival faiths to Heaven by both parties going to the tomb of St. Justus and appealing to him, but the Arians prudently refused to imitate Saul and practise necromantic arts.—Collatio Episcoporum coram R. Gundebaldo (Migne’s Patrologia, LIX. 391).

[1200] Remberti Vit. St. Anscharii c. xvi. (Langebek I. 458-9).

[1201] Gesta Consul. Andegavens. c. iii. § 16 (D’Achery III. 241).

[1202] Cæsar. Heisterbach Dial. Mirac. Dist. VIII. c. lxxiii.

[1203] Legendæ de S. Olavo (Langebek II. 551-2).

[1204] Pet. Damian. Opusc. LVII. Diss. ii. c. 3, 4.

[1205] Conc. Roman. ann. 904 (898) c. 1 (Harduin. VI. I. 487).—Liutprand. Antapodos. Lib. I. c. 30, 31.

[1206] Patetta, Le Ordalie, p. 218.

[1207] Wieri de Præstigiis Dæmonum, pp. 589-90.

[1208] That this was a settled practice is shown by its existence in the earliest text of the law (Tit. LVI.) as well as in the latest (L. Emend. Tit. LIX.).

[1209] Si aufugerit et ordalium vitaverit, solvat plegius compellanti captale suum et regi weram suum.—L. Cnuti Sæc. cap. xxx.—See also cap. xli.

[1210] Et eligat accusatus alterutrum quod velit, sive simplex ordalium, sive jusjurandum unius libre in tribus hundredis super xxx. den.—L. Henrici I. cap. LXV. § 3. By the municipal codes of Germany, a choice between the various forms of ordeal was sometimes allowed to the accused who was sentenced to undergo it.—Jur. Provin. Alaman. cap. xxxvii. §§ 15, 16. Jur. Provin. Saxon. Lib. I. Art. 39.

[1211] Dooms of Ethelstan, I. cap. 21.

[1212] First Text, Tit. LIII. and L. Emend. Tit. LV.

[1213] Jura primæva Moraviæ, Brunæ, 1781, p. 27.

[1214] Yajnavalkya, II. 96.

[1215] Institutes of Vishnu, IX. 18-19.

[1216] Yajnavalkya, II. 22.

[1217] Leg. Frision. Tit. III. c. 8, 9.

[1218] Guthrunarkvida Thridja, 9, 10 (Thorpe’s Elder Edda, pp. 106-7).

[1219] Roberti Pulli Sententt. Lib. VI. cap. liv. (Migne’s Patrologia, T. CLXXXVI. p. 905).

[1220] Si certa probatio non fuerit.—L. Sal. Tit. XIV. XVI. (MS. Guelferbyt). The same is found in the Pact. Childeberti et Chlotarii § 5.—Decret. Chlotarii II. ann. 595, § 6.—Capit. Carol. Calvi, ann. 873, cap. 3, 7.—Cnuti Constit. de Foresta § 11: “Sed purgatio ignis nullatenus admittatur nisi ubi nuda veritas nequit aliter investigari.”—In the customs of Tournay in 1187, when a man has been wounded and has no witnesses the accused can clear himself with six conjurators if the affair occurred in the daytime, but if at night he is forced to the cold-water ordeal (Consuet. Tornacens. § ii. _ap._ D’Achery, Spicileg. III. 551). Horne’s Myrror of Justice, cap. III. Sect. 23: “En case ou battaille ne se poit joindre ne nul tesmognage n’avoit lieu ... e le actor n’ad point de testmoignes a prover sa

## action, adonque estoit en le volunt del deffendant a purger sa fame

per le miracle de Dieu.” Yet in an English case of murder early in the thirteenth century, the accused was found with the murdered man’s cap and the knife with which he had been slain, and the whole vicinage testified to it, yet he was allowed to purge himself with the water ordeal.—Maitland, Pleas, etc., p. 80.

[1221] Ruskaia Prawda, art. 28. Even the evidence of a slave was sufficient to condemn the accused to the red-hot iron. If he escaped, the accuser paid him a small fine, which was not required if the witnesses had been freemen. In all cases of acquittal, however, there were fines payable to the sovereign and to the ministers of justice.

[1222] Et omnis accusator vel qui alium impetit, habeat optionem quid velit, sive judicium aque vel ferri ... et si fugiet (accusatus) ab ordalio, reddat eum plegius wera sua.—Ethelr. Tit. III. c. vi. (Thorpe II. 516).

[1223] Thus, in the Icelandic code—“Quodsi reus ferrum candens se gerere velle obtulerit, hoc minime rejiciatur.”—Grágás, Sect. VI. c. 33. So in the laws of Bruges in 1190 (§ 31), we find the accused allowed to choose between the red-hot iron and a regular inquest—“Qui de palingis inpetitur, si ad judicium ardentis ferri venire noluerit, veritatem comitis qualem melius super hoc inveniri poterit, accipiet” (Warnkönig, Hist. de la Fland. IV. 372)—showing that it was considered the most absolute of testimony. And in a constitution of Frederic Barbarossa “Si miles rusticum de violata pace pulsaverit ... de duobus unum rusticus eligat, an divino aut humano judicio innocentiam suam ostendat.”—Feudor. Lib. II. Tit. xxvii. § 3.

[1224] Thus an anonymous ecclesiastic, in an epistle quoted by Juretus (Observat. in Ivon. Carnot. Epist. 74)—“Simoniaci non admittuntur ad judicium, si probabiles personæ, etiam laicorum, vel feminarum, pretium se ab eis recipisse testantur; nec aliud est pro manifestis venire ad judicium nisi tentare Dominum.”

[1225] Duellum vel judicium candentis ferri, vel aquæ ferventis, vel alia canonibus vel legibus improbata, nullomodo in curia Montispessulani rati sunt, nisi utraque pars convenerit.—Statut. Montispess. ann. 1204 (Du Cange).

[1226] Si accolis de neutrius jure constat, adeoque hac in re testimonium dicere non queant, tum judicio aquæ res decidatur.—Jur. Provin. Alaman. cap. cclxxviii. § 5.—Poterit enim alteruter eorum petere probationem per aquam (wasser urteyll) nec Dominus nec adversarius detrectare possit; sed non, nisi quum per testes probatio fieri nequit.—Jur. Feud. Alaman. cap. lxxvii. § 2.

“Aut veritas reperiatur de hoc per aquaticum Dei judicium. Tamen judicium Dei non est licitum adhiberi per ullam causam, nisi cujus veritas per justitiam non potest aliter reperiri, hoc terminabitur judicio Dei.”—Jur. Feud. Saxon. § 100 (Senckenberg. Corp. Jur. Feud. German. p. 249).—So, also, in a later text, “judicium Domini fervida aqua vel ferro non licet in causa aliqua experiri, nisi in qua modis aliis non poterit veritas indagari.”—Cap. xxiv. § 19 (Ibid. p. 337).

[1227] Établissements de Normandie, Tit. de Prison (Éd. Marnier). Precisely similar to this was a regulation in the early Bohemian laws.—Bracilai Leges. (Patrol. CLI., 1258-9). And an almost identical provision is found in the Anglo-Saxon jurisprudence.—L. Cnuti Sæc. cap. xxxv.—L. Henric. I. cap. lxi. § 5.—See, also, Assises de Jerusalem, Baisse Court, cclix.

[1228] Batthyany, Legg. Eccles. Hung. II. 105.

[1229] Et qui inveniatur per sacramentum prædictorum rettatus vel publicatus quod fuerit robator vel murdrator vel latro vel receptor eorum, postquam dominus rex fuit rex, capiatur et eat ad juisiam aquæ.—Assisa de Clarenduna § 2 (Stubbs, Select Charters, p. 137). For examples, see Maitland, Pleas, pp. 3, 4, 5, etc.

[1230] Maitland, Pleas, etc., I. 1. P. 75 is a case of a youth detained in prison and sent to the ordeal apparently without a trial.

[1231] Ruskaia Prawda, Art. 28.

[1232] Maitland, Pleas, etc., I. 10.

[1233] Hincmari Capit. Synod. ann. 852, II. xxi.

[1234] Hincmari Epist. xxxiv.

[1235] Capit. Car. Mag. ann. 794, § 7.

[1236] Se juratores non potuerit invenire, aut ad ineum ambulat aut, etc.—MS. Guelferbyt. Tit. XIV.

[1237] Quod si ... juratores invenire non potuerit, ad ignem seu ad sortem se excusare studeat.—L. Ripuar. Tit. xxxi. § 5.

[1238] Dooms of Edward the Elder, cap. iii. So also in the laws of William the Conqueror, Tit. I. cap. xiv.—“Si sen escundira sei duzime main. E si il auer nes pot, si sen defende par juise.” The collection known by the name of Henry I. has a similar provision, cap. lxvi. § 3.

[1239] Radevic. de Reb. Frid. Lib. I. cap. xxvi. This was an old feature of the Barbarian codes which continued till late in the Middle Ages. See _ante_, p. 22.

[1240] Concil. Tribur. ann. 895, can. xxii.

[1241] Yajnavalkya, II. 99.

[1242] Chart. Commun. Laudun. (Baluz. et Mansi IV. p. 39).

[1243] Consuetud. Tornacens. § iii. (D’Achery III. 551). See above, p. 54.

[1244] Ut deinceps non sint digni juramento sed ordalio.—Legg. Edwardi cap. iii.; Æthelredi cap. i. § 1; Cnuti Sæcul cap. xxii. xxx.; Henrici I. cap. lxv. § 3.

[1245] Capit. Car. Mag. I. ann. 809, cap. xxviii.—Capit Ludov. Pii. I. ann. 819.

[1246] Burchardi Decret. Lib. XVI. cap. 19.

[1247] Keure de la Châtellenie de Bruges, § 28 (Warnkönig, Hist. de la Fland. IV. 371).

[1248] Jur. Provin. Alaman. cap. clxxxvi. §§ 4, 6, 7; cap. ccclxxiv.—Jur. Provin. Saxon. Lib. I. Art. 39.—Sachsische Weichbild, Art. xcii. § 2.—Richstich Landrecht, cap. lii.

[1249] Si non fuere provada por mala, que aya yazido con cinco omes.—Fuero de Baeça (Villadiego, Fuero Juzgo, fol. 317 _a_).

[1250] Capit. Car. Mag. III. ann. 813, cap. 46.

[1251] Concil. Mogunt. ann. 847, can. xxiv.—Burchardi Decret. Lib. XVI. cap. 19.—Keure de Gand, §§ 7, 8, 12 (Warnkönig, II. 228).

The law of William the Conqueror (Tit. II. c. 3.—Thorpe, I. 488) by which the duel was reserved for the Norman, and the vulgar ordeal for the Saxon, might be supposed to arise from a similar distinction. In reality, however, it was only preserving the ancestral customs of the races, giving to the defendant the privilege of his own law. The duel was unknown to the Anglo-Saxons, who habitually employed the ordeal, while the Normans, previous to the Conquest, according to Houard, who is good authority (Anc. Loix Franc. I. 221-222), only appealed to the sword.

[1252] Martene de Antiq. Eccl. Ritibus Lib. III. c. vii. Ord. 6. For the beliefs connected with mortuary masses see Concil. Toletan XVII. ann. 694 c. 5; D’Argentré Collect. Judic. de novis Error. I. II. 344; Angeli de Clavasio Summa Angelica s. v. _Interrogationes_; Diaz de Luco, Practica Criminalis Canonica cap. xxxv.; Grillandi de Sortilegiis q. xiv.

[1253] The severity of the ordeal, when the sufferer had no friends among the operators to save him, may be deduced from the description of a hand when released from its three days’ tying up after its plunge in hot water: “inflatam admodum et excoriatam sanieque jam carne putrida effluentem dexteram invitus ostendit” (Du Cange, s. v. _Aquæ Ferv. Judicium_). In this case, the sufferer was the adversary of an abbey, the monks of which perhaps had the boiling of the caldron.

[1254] L. Wisig. L. VI. Tit. i. § 3.

[1255] Ivon. Carnot. Epist. 74; Ejusd. Decr. X. 27.—C. 20 Decr. Caus. II. q.v.

This epistle is generally attributed to Stephen V., but two MSS. of Ivo of Chartres ascribe it to Sylvester II. (Migne’s Patrologia CLXII. 96).

[1256] Concil. Basol. cap. xi. Rainer, private secretary of Arnoul, offered to prove his statement by giving up a slave to walk the burning ploughshares in evidence of his truth (Ibid. cap. xxx.).

[1257] Yajnavalkya, II. 99.

[1258] Wharton and Stillé’s Med. Jurisp., 2d Edit. 1860.

[1259] Michelet, Origines du Droit, p. 349.—Proost, Jugements de Dieu, p. 80. This seems to be derived from the _skirsla_ of the Norsemen described above.

[1260] London Athenæum, Aug. 20, 1881, p. 247.

[1261] Polyptichum Irminonis, App. No. 34 (Paris, 1836, p. 373).

[1262] Martene, De Antiq. Eccles. Ritibus Lib. III. cap. vii. Ordo 5.

[1263] Patetta, Le Ordalie, p. 192.

[1264] Hincmari Remens. Epist. XXII. (Migne’s Patrol. CXXVI. 136).

[1265] Quod si accusatus contendere voluerit de ipso perjurio stent ad crucem.... Hoc vero de minoribus rebus. De majoribus vero, aut de statu ingenuitatis, secundum legem custodiant.—Capit. Car. Mag. ann. 779, § 10. That this was respected as law in force, nearly a hundred years later, is shown by its being included in the collection of Capitularies by Benedict the Levite (Lib. V. cap. 196).

[1266] Ut omnes judicio Dei credant absque dubitatione.—Capit. Car. Mag. I. ann. 809, § 20.

[1267] Aimoini Chron. Continuat. Lib. V. c. 34.

[1268] Assisa facta apud Clarendune §§ 12, 13, 14 (Gesta Henrici II. T. II. p. clii.—M. R. Series). A case in accordance with this occurs in 1212 (Maitland, Pleas, I. 63).

[1269] Gesta Henrici II. T. I. p. 108.—Cf. Bracton. Lib. III. Tract, ii. cap. 16 § 3.

[1270] Simili modo, cauterium militis nullum tibi certum præbet argumentum, cum per examinationem ferri candentis occulto Dei judicio multos videamus nocentes liberatos, multos innocentes sæpe damnatos.—Ivon. Carnot. Epist. cccv.

[1271] Pet. Cantor. Verb. Abbreviat. c. lxxviii.

[1272] Vit. Carol. Comit. Flandren. cap. xx.

[1273] Collin de Plancy, op. cit. S. V. _Fer Chaud_.

[1274] Cæsar. Heisterbach. Dial. Mirac. Dist. X. c. xxxv.

[1275] Ciruelo, Reprovacion de las Supersticiones, P. II. c. vii.

[1276] Othlon. Narrat. de Mirac. quod nuper accidit, &c. (Migne’s Patrol. CXLVI. 243-4).

[1277] Polyptichum Irminonis, App. No. 20 (Paris, 1836, p. 354).

[1278] Olaf Haraldssons Saga, cxlv. (Laing’s Heimskringla, II. 210).

[1279] Enimvero mirum fuit ultra modum, quod fautores arsuram et inflationem conspiciebant; criminatores ita sanam ejus videbant palmam, quasi penitus fulvum non tetigisset ferrum.—Mirac. S. Swithuni c. ii. § 37. In this case the patient was a slave, whose master had vowed to give him to the Church in case he escaped.

[1280] Ad utramque partem sint ternas personas electas, ne conludius fieri possit.—Decret. Chlotharii II. cap. VII.

[1281] Ethelred, III. § 4.

[1282] Synod. Zaboles can. 27 (Batthyani, Legg. Eccles. Hung. T. I. p. 439).

[1283] Martene de Antiq. Eccl. Ritibus Lib. III. c. vii. Ordo 1.

[1284] Statut. Wilhelmi Regis cap. 7 § 3 (Skene II. 4).

[1285] Ibid. cap. 16.

[1286] Maitland, Pleas of the Crown, I. 75.

[1287] Nam criminosos eodem chrismate unctos aut potatos nequaquam ullo examine deprehendi posse a multis putatur.—C. Turonens. III. ann. 813 c. 20 (Harduin. IV. 1026).

[1288] Capit. Car. Mag. II. ann. 809.—Capitul. Lib. III. c. 55.—Reginon. de Discip. Ecclesiæ I. 73.

[1289] Reginon. _op. cit._ I. 72.—Burchardi Decret. IV. 80.—Ivon. Carnot. Decret. I. 274.

[1290] Martene de Antiq. Ritibus Ecclesiæ Lib. III. c. vii. Ordo 8. So in a ninth century exorcism of the hot water—“et si culpabilis de hac causa est et aliqua maleficia aut per herbas peccatum suum tegere voluerit tua dextera evacuare dignetur.”—Patetta, Archivio Giuridico, Vol. XLV.

[1291] Martene, _loc. cit._ Ord. 10, 18.

[1292] Du Cange, s. v. _Ferrum candens_.

[1293] Experimentum mirabile quod facit homines ire in ignem sine læsione, vel portare ignem vel ferrum ignitum sine læsione in manu. Recipe succum bismalvæ et albumen ovi et semen psilli et calcem et pulveriza et confice; cum illo albumine ovi succum raphani commisce et ex hac confectione illinas corpus tuum et manum et dimitte siccari; et postea iterum illinas et post hoc poteris audacter sustinere ignem sine nocumento.—Alb. Mag. de Miraculis Mundi (Binterim, Denkwürdigkeiten der Christ-Katholischen Kirche, Bd. V. Th. iii. p. 70).

[1294] The “Liber adversus Legem Gundobadi” and “Liber contra Judicium Dei.”

[1295] Concil. Salisburg. I. can. ix. (Dalham Concil. Salisburg. p. 35).

[1296] Ahytonis Capitular, cap. xxi. (D’Achery I. 585).

[1297] Capit. Carol. Calvi Tit. XI. c. iii. (Baluze).

[1298] Concil. Turon. ann. 925 (Martene et Durand Thes. T. IV. pp. 72-3).

[1299] Annalist. Saxo. ann. 1028.

[1300] Höfler, Concilia Pragensia, p. xiv. Prag. 1862.

[1301] Burchardi Decret. Lib. XIX. c. 5 (Migne’s Patrologia CXL. p. 973).—Corrector Burchardi cap. 155 (Wasserschleben, Bussordnungen der abenländischen Kirche, p. 660).

[1302] Batthyani, Legg. Eccles. Hung. II. 126.

[1303] Examinati judicio aquæ mendaces inventi sunt ... aqua eos non suscipiente.—In Cantica, Sermon. 66 cap. 12.

[1304] De Vita Sua Lib. III. cap. 18.

[1305] Concil. Remens. ann. 1157, can. 1 (Martene Ampl. Coll. VII. 75).

[1306] Hist. Vizeliacens. Lib. IV. (D’Achery Spicileg. II. 560).

[1307] Godefridi S. Pantaleon. Annal. ann. 1172 (Freher et Struv. Rer. German. Scriptt. I. 340).

[1308] Pet. Cantor. Verb. Abbreviat. cap. lxxviii. (Patrol. CCV. 230).

[1309] Cæsar. Heisterbach. Dial. Mirac. Dist. III. c. xvi. xvii.

[1310] Döllinger, Beiträge zur Sektengeschichte des Mittelalters, München, 1890, II. 621, 622.

[1311] Theodericus Abbas Vice-Comitem adiit paratus aut calidi ferri judicio secundum legem monachorum per suum hominem probare, aut scuto et baculo secundum legem secularium deffendere.—Annal. Benedict. L. 57, No. 74, ann. 1036 (_ap._ Houard, Loix Anc. Franç. I. 267).

[1312] Judicium ferri igniti et aquæ ferventis Abrincis portaretur, si clerici lapsi in culpam degradationis forte invenirentur.—Chart. Joan. Abrinc. (Patrolog. CXLVII. 266).

[1313] Ivon. Carnot. Epist. ccxxxii. ccxlix. cclii.

[1314] C. Remens. ann. 1119 (Harduin. VI. 1986).—Hildeberti Cenomanens. Epist. (D’Achery Spicileg. III. 456).

[1315] Gemma Animæ, Lib. 1 cap. 181. At least this is the only reading which will make the passage intelligible—“Horum officium est ... vel nuptias vel arma, vel peras, vel baculos vel judicia ferre et aquas vel candelas ... benedicere,” where “ferre et aquas” is evidently corrupt for “ferri et aquæ.”

[1316] Hoc autem utrum ad omnia genera purgationis, an ad hæc duo tantum, quæ hic prohibita esse videntur, pertineat, non immerito dubitatur propter sacrificium zelotypiæ, et illud Gregorii.—C. 20, caus. II. q. v.

[1317] Ordo ad Frigidam Aquam, etc. (Pez, Thesaur. Anecd. T. II. P. II. p. 635).

[1318] Ivon. Decret. X. 15.

[1319] Dialog. Ecbert. Ebor. Interrog. III. (Thorpe, II. 88).

[1320] Abbon. Floriac. Epist. viii.

[1321] Ivon. Carnotens. Epist. lxxiv.

[1322] I have treated this matter in some detail in “Studies in Church History,” pp. 69-74, 190 sqq.

[1323] Du Cange, s. v. _Adramire._

[1324] Revue Hist. de Droit, 1861, p. 478.

[1325] Decret. Coloman. c. 11 (Batthyani T. I. p. 454).

[1326] Lagrèze, Hist. du Droit dans les Pyrénées, p. 246.

[1327] “Presbyter de ferro duas pensas et de aqua unam pensam accipiat.” Synod. Zabolcs. ann. 1092 can. 27 (Batthyani I. 439). Another reading makes the fee equal for both (Ib. II. 101).

[1328] Jura Primæva Moraviæ, Brunæ, 1781, p. 26.

[1329] Pet. Cantor. Verb. Abbreviat. cap. xxiv.

[1330] Orderic. Vital. Lib. V. cap. v.

[1331] Leg. Scanicar. Lib. VII. cap. 99 (Ed. Thorsen, p. 171). There is another provision that in certain cases of murder the accused could not be compelled to undergo the ordeal of the red-hot ploughshares unless the accuser was supported by twelve conjurators, when, if the accused was successful each of the twelve was obliged to pay him three marks, and the same sum to the priest.—Ib. L. V. c. 58 (p. 140). It was scarcely intelligible why these ordeals were not allowed to be performed in any week in which there was a church-feast (Ibid. p. 170-1).

[1332] Post. Concil. Lateran. P. II. cap. 3, 11.

[1333] Holophernicos.... Presbyteros, qui animas hominum carissime appreciatas vendant; fœminas nudatas aquis immergi impudicis oculis curiose perspiciant, aut grandi se pretio redimere cogant.—De Casibus S. Galli cap. xiv.

[1334] Alex. PP. III. Epist. 74.

[1335] Alex. PP. III. Epist. (Harduin. VI. II. 1439).

[1336] Pet. Cantor. Verb. Abbreviat. cap. lxxviii.

[1337] Hermanni Opusc. de sua Conversione c. 5 (Migne, CLXX. 814).

[1338] Anon. Libell, adversus Errores Alberonis (Martene Ampl. Coll. IX. 1265).

[1339] C. 8 Extra V. xxxiv.

[1340] Can. 10 Extra V. 31.

[1341] Innoc. PP. III. Regest. XIV. 138.—Yet abundant miracles in Strassburg testified to the divine favor in these trials.—Cæsar. Hiesterbac. Dist. III. c. 16, 17.

[1342] Nec ... quisquam purgationi aquæ ferventis vel frigidæ, seu ferri candentis ritum cujuslibet benedictionis seu consecrationis impendat.—Concil Lateran. can. 18. In 1227, the Council of Trèves repeated the prohibition, but only applied it to the red-hot iron ordeal. “Item. nullus sacerdos candens ferrum benedicat.”—Concil. Trevirens. ann. 1227, cap. ix.

[1343] Trithem. Chron. Hirsaug. ann. 1215.

[1344] Vulgaris purgatio est quæ a vulgo est inventa, ut ferri candentis, aquæ ferventis vel frigidæ, panis vel casei, monomachiæ id est duelli et ceteræ hujusmodi: sed ista hodie in totum reprobata est et maledicta, tum quia inventa est a diabolo fabricante.—S. Raymundi Summæ Lib. III. Tit. xxxi. § 1.

[1345] Ergo hujusmodi judicia sunt penitus reprobanda et purgatio per talia.—Alex. de Ales Summæ P. III. Q. xlvi. Membr. 3.

[1346] Hostiensis Aureæ; Summæ Lib. V. _De Purg. Vulg._ § 3.

[1347] Joh. Friburgens. Summæ Confessorum Lib. III. Tit. xxxi. Q. 2, 3.

[1348] Astesani de Ast Summæ de Casibus Conscientiæ, P. I. Lib. I. Tit. xiv.

[1349] Sachsenspiegel, ed. Ludovici, 1720, p. 619.

[1350] Fontanon, IV. 942.

[1351] Rymer, Fœd. I. 228.

[1352] Prohibitum est judicium quod fieri consuevit per ignem et per aquam.—Mat. Westmon. ann. 1250.

[1353] De cetero non fiat judicium per aquam vel ferrum, ut consuetum fuit antiquis temporibus.—Statut. Alex. II. cap. 7 § 3. There is some obscurity about this provision owing to variants in the MSS., but Mr. Neilson holds (Trial by Combat, p. 113;) that there can be little doubt that it abolished the ordeal wholly.

[1354] Leges quæ a quibusdam simplicibus sunt dictæ paribiles ... præsentis nostri nominis sanctionis edicto in perpetuum inhibentes omnibus regni nostri judicibus, ut nullus ipsas leges paribiles, quæ absconsæ a veritate deberent potius nuncupari, aliquibus fidelibus nostris indicet.... Eorum etinim sensum non tam corrigendum duximus quam ridendum, qui naturalem candentis ferri calorem tepescere, imo (quod est stultius) frigescere, nulla justa causa superveniente, confidunt; aut qui reum criminis constitutum, ob conscientiam læsam tantum asserunt ab aquæ frigidæ elemento non recipi, quem submergi potius aeris competentis retentio non permittit.—Constit. Sicular. Lib. II. Tit. 31. This last clause would seem to allude to some artifice of the operators by which the accused was prevented from sinking in the cold-water ordeal when a conviction was desired.

This common sense view of the miracles so generally believed is the more significant as coming from Frederic, who, a few years previously, was ferociously vindicating with fire and sword the sanctity of the Holy Seamless Coat against the aspersions of unbelieving heretics. See his Constitutions of 1221 in Goldastus, Const. Imp. I. 293-4.

[1355] Statut. MSS. Caroli I. cap. xxii. (Du Cange, s. v. _Lex Parib._).

[1356] Königswarter, _op. cit._ p. 176.

[1357] Emon. Chron. ann. 1219 (Matthæi Analect. III. 72).

[1358] Issued in 1323.

[1359] Cod. Leg. Norman. P. II. c. X. §§ 2, 3 (Ludewig, Reliq. Mictorum. VII. 292). It is a little singular that the same phrase is retained in the authentic copy of the Coutumier, in force until the close of the sixteenth century.—Anc. Cout. de Normandie, c. 77 (Bourdot de Richebourg. IV. 32).

[1360] C. iii. Extra, Lib. V. Tit. xxxv.—As embodied in the Decretals of Gregory IX. this canon omits a clause indicating how great was the detestation of the people for the ordeal thus imposed on them—“quare conversis et convertendis scandalum incutiunt et terrorem.”—Quint. Compilat. Honorii III. Lib. IV. Tit. xiv.

[1361] Batthyani, Legg. Eccles. Hung. T. II. p. 436.—Hartzheim, IV. 27.

[1362] Rogeri Bacon Epist. de Secretis Operibus Artis c. ii. (M. R. Series I. 526).

[1363] Richstich Landrecht, cap. LII. The same provisions are to be found in a French version of the Speculum Suevicum, probably made towards the close of the fourteenth century for the use of the western provinces of the Empire.—Miroir de Souabe, P. I. c. xlviii. (Éd. Matile, Neufchatel, 1843).

[1364] Villaneuva, Viage Literario, XXII. 288.—Du Cange, s. vv. _Ferrum candens_, _Batalia_.

[1365] Coleccion de Cédulas, etc., Madrid, 1830, Tom. V. p. 142.

[1366] Memorial Histórico Español, Madrid, 1850, Tom. I. p. 47.

[1367] Concil. Palentin. ann. 1322, can. xxvi.

[1368] Non es tenuda la parte de probar lo que niega porque non lo podrie facer.—Las Siete Partidas, P. III. Tit. xiv. l. 1.

[1369] S. Antonini Confessionale.

[1370] Angeli de Clavasio Summa Angelica s. v. _Interrogationes_. The contemporary Baptista de Saulis speaks of ordeals in the present tense when saying that all concerned in them are guilty of mortal sin.—Summa Rosella, s. v. _Purgatio_.

[1371] Patetta, Le Ordalie, p. 450.

[1372] Plees del Corone, chap. xv. (quoted in 1 Barnewall & Alderson, 433).

[1373] Ciruelo, Reprovacion de las Supersticiones. P. II. cap. vii. Salamanca, 1539.

[1374] Aventini Annal. Boior. Lib. IV. c. xiv. n. 31.

[1375] When, in 1692, Jacques Aymar attracted public attention to the miracles of the diving-rod, he was called to Lyons to assist the police in discovering the perpetrators of a mysterious murder, which had completely baffled the agents of justice. Aided by his rod, he traced the criminals, by land and water, from Lyons to Beaucaire, where he found in prison a man whom he declared to be a participant, and who finally confessed the crime. In 1703 Marshal Montrevel and the intendant Baville made use of Aymar to discover Calvinists, of whom numbers were condemned on the strength of his revelations (Patetta, Le Ordalie, p. 33). Aymar was at length proved to be merely a clever charlatan, but the mania to which he gave rise lasted through the eighteenth century, and nearly at its close his wonders were rivalled by a brother sharper, Campetti. The belief in the powers of the divining-rod has not yet died out, and it is frequently used to discover oil wells, springs, mines, etc.

A good account of Aymar’s career and the discussion to which it gave rise may be found in Prof. Rubio y Diaz’s “Estudios sobre la Evocacion de los Espiritus,” Cadiz, 1860, pp. 116-28.

[1376] Diod. Sicul. 1. lxxv.—Sir Gardiner Wilkinson (Ancient Egyptians, Vol. II.) figures several of these little images.

[1377] See the translation of the Amherst Papyrus by Chabas, Mélanges Égyptologiques, III.^e Serie, T. II. p. 17 (Sept. 1873). The interpretation of the groups relating to the hands and feet is conjectural, but they unquestionably signify some kind of violence. M. Chabas qualifies this passage as highly important, being the first evidence that has reached us of the judicial use of torture in Egypt. The question has been a debated one, but the previous evidence adduced was altogether inconclusive.

[1378] Lenormant, Man. de l’Hist. Ancienne de l’Orient, II. 141.

[1379] Herod. I. 116.

[1380] Behistun Inscription, col. II. 25-6 (Records of the Past, VII. 98-99). It is worthy of remark that this Medic version of the Inscription is more circumstantial as to these inflictions than the Persian text translated by Rawlinson (Records I. 118-19).

[1381] Manu, Bk. VIII.—Institutes of Vishnu, VI. 23, VIII. IX.—Ayeen Akbery, Tit. Beyhar, Vol. II. p. 494—Halhed’s Code of Gentoo Laws, chap. xviii.

[1382] Albany Law Journal, 1879.

[1383] Lib. III. cap. iii.

[1384] Aristophanes (_Ranæ_, 617) recapitulates most of the processes in vogue.

_Aiachos._ καὶ πῶς βασανίζω?

_Xanthias._ πάντα τρόπον, ἐν κλίμακι δήσας, κρεμάσας, ὑστριχίδι μαστιγῶν, δέρων, στρεβλῶν, ἔτι δ’είς τὰς ῥῖνας ὅζος ἐγχέων, πλίνθους ἐπιτιθείς, παντα τἄλλα.

The best summary I have met with of the Athenian laws of torture is in Eschbach’s “Introduction à l’Étude du Droit,” § 268.

[1385] Sueton. August. xxii.

[1386] Sueton. Tiberii lxii.

[1387] Ibid. Caii xxxii.—Claud. xxxiv.

[1388] Ibid. Tiber. lviii.

[1389] Tacit. Annal. XV. xliv.

[1390] Lactant. de Mortib. Persecut. cap. xiii.

[1391] Tormentorum genera inaudita excogitabantur (Ibid. cap. xv.).—When the Christians were accused of an attempt to burn the imperial palace, Diocletian “ira inflammatus, excarnificari omnes suos protinus præcipit. Sedebat ipse atque innocentes igne torrebat” (Ibid. cap. xiv.).—Lactantius, or whoever was the real author of the tract, addresses the priest Donatus to whom it is inscribed: “Novies etiam tormentis cruciatibusque variis subjectus, novies adversarium gloriosa confessione vicisti.... Nihil adversus te verbera, nihil ungulæ, nihil ignis, nihil ferrum, nihil varia tormentorum genera valuerunt” (Ibid. cap. xvi.). Ample details may be found in Eusebius, Hist. Eccles. Lib. V. c. 1, VI. 39, 41, VIII. passim, Lib. Martyrum; and in Cyprian, Epist. X. (Ed. Oxon. 1682).

[1392] Tacit. Annal. XV. lvi. lvii.

[1393] L. 10 § 6, Dig. XLVIII. xviii.

[1394] L. 12, Dig. XLVIII. xviii. (Ulpian.).

[1395] Const. 8 Cod. IX. xli. (Dioclet. et Maxim.).

[1396] Const. 11 Cod. IX. xli.

[1397] Ibid. § 1.

[1398] Const. 16 Cod. IX. xli.

[1399] Const. 8 Cod. I. 3.

[1400] Const. 4 Cod. IX. viii.

[1401] Dion. Cass. Roman. Hist. Lib. LX. (Ed. 1592, p. 776).

[1402] Sueton. Domit. cap. viii. To Domitian the historian also ascribes the invention of a new and infamously indecent kind of torture (Ibid. cap. x.).

[1403] Const. 3 Cod. IX. xli.

[1404] Const. 31 Cod. IX. ix.

[1405] Const. 7 Cod. IX. viii.

[1406] Novell. CXVII. cap. xv. § 1.

[1407] Hieron. Epist. I. ad Innocent.

[1408] Const. 17 Cod. IX. ii.—Const. 10 Cod. IX. xlvi.

[1409] Const. 3 Cod. IX. viii.

[1410] Acts, XXII. 24 sqq.

[1411] L. 21 § 2, Dig. XXII. v.

[1412] Novell. XC. cap. i. § 1.

[1413] Quæstiones neque semper in omni causa et persona desiderari debere arbitror; et cum capitalia et atrociora maleficia non aliter explorari et investigari possunt, quam per servorum quæstiones, efficacissimas esse ad requirendam veritatem existimo et habendas censeo.—L. 8, Dig. XLVIII. xviii. (Paulus).

[1414] L. 9, Dig. XLVIII. xviii. (Marcianus).

[1415] L. 9 § 1, Dig. XLVIII. xviii.—L. 1 § 16, Dig. XLVIII. xvii. (Severus)—L. 1 § 18, Dig. XLVIII. xviii. (Ulpian.).

[1416] Pauli Lib. v. Sentt. Tit. xvi. § 7.—The same principle is involved in a rescript of the Antonines.—L. 1 § 14, Dig. XLVIII. xvii. (Severus).

[1417] L. 1 § 7, Dig. XLVIII. xvii. The expression “in caput domini” applies as well to civil as to criminal cases.—Pauli Lib. V. Sentt. Tit. xvi. § 5.

[1418] L. 3, Dig. XLVIII. xviii.—Const. 13 Cod. IX. xli.

[1419] L. 10 § 2, Dig. XLVIII. xviii.—Const. 2 Cod. IX. xli. (Sever. et Antonin. ann. 205).

[1420] L. 1 § 11, Dig. XLVIII. xvii.

[1421] L. 1 § 9, Dig. XLVIII. xvii.

[1422] L. 1 § 13. XLVIII. xvii.—Pauli Lib. V. Sentt. Tit. xvi. § 9.

[1423] Const. 10 Cod. IX. xli. (Dioclet. et Maxim.).

[1424] Tacit. Annal. II. 30. See also III. 67. Somewhat similar in spirit was his characteristic device for eluding the law which prohibited the execution of virgins (Sueton. Tiber. lxi.).

[1425] This principle is embodied in innumerable laws. It is sufficient to refer to Constt. 6 § 2, 7 § 1, 8 § 1, Cod. IX. viii.

[1426] L. 18 § 6, Dig. XLVIII. xviii. (Paulus).

[1427] L. 1 § 19, Dig. XLVIII. xviii. (Ulpian.).

[1428] Const. 1 Cod. IX. xli. (Sever et Antonin.).

[1429] Constt. 3, 32 Cod. IX. ix.—L. 17, XLVIII. xviii. (Papin.).

[1430] L. 5 Dig. XLVIII. xviii. (Marcian.).

[1431] Fl. Vopisc. Tacit. cap. IX.

[1432] Du Boys, Hist. du Droit Crim. des Peup. Anciens. pp. 297, 331, 332.

[1433] Const. 7 Cod. IX. xli. (Dioclet. et Maxim.).

[1434] Pauli Lib. v. Sentt. Tit. xvi. § 3.—See also Ll. 6, 13 Dig. XLVIII. xviii.

[1435] Const. 6 Cod. IX. xlvi. This provision of the L. Julia appears to have been revived by Diocletian.

[1436] Lib. IX. Cod. Theod. i. 14.

[1437] L. 16 § 1, Dig. XLVIII. xviii. (Modestin.).

[1438] L. 10 Dig. XLVIII. xviii. (Arcad.).

[1439] L. 3 Dig. XLVIII. xix. (Ulpian.).

[1440] L. 10 § 3, Dig. XLVIII. xviii.

[1441] L. 22 Dig. XLVIII. xviii.

[1442] L. 21 Dig. XLVIII. xviii.

[1443] L. 1 § 1, Dig. XLVIII. xviii. (Ulpian.).

[1444] Const. 8 Cod. IX. xli. (Dioclet. et Maxim.).

[1445] L. 7, Dig. XX. v.

[1446] L. 1 § 4, Dig. XLVIII. xviii. (Ulpian.).

[1447] L. 1 § 23, Dig. XLVIII. xviii.—Res est fragilis et periculosa et quæ veritatem fallat.

[1448] Altera sæpe etiam causam falsa dicendi, quod aliis patientia facile mendacium faciat, aliis infirmitas necessarium.—M. F. Quintil. Inst. Orat. V. iv.

[1449] Val. Maximi Lib. VIII. c. iv.

[1450] Philostrati vit. Apollon. VII. xxiv.

[1451] Valer. Maxim. Lib. VIII. c. iv.

[1452] Hieron. Epist. I. ad Innocentium.

[1453] Q. Curt. Ruf. Hist. VI. xi. Anceps conjectura est quoniam et vera confessis et falsa dicentibus idem doloris finis ostenditur.

[1454] Pauli Lib. V. Sentt. Tit. xiv. § 2.—L. 18 Dig. XLVIII. xviii.

[1455] Aurel. Prudent. de Vincent. Hymn. v.

[1456] Greg. Turon. Hist. Franc. Lib. II. c. xxvii.

[1457] De Bell. Gall. VI. xix.

[1458] These provisions are specified only in the Salic Law (First Text of Pardessus, Tit. XL. §§ 6, 7, 8, 9, 10.—L. Emend. Tit. XLII. §§ 8, 9, 10, 11, 12, 13), but they were doubtless embodied in the practice of the other tribes.

[1459] L. Burgund. Tit. VII.—The other allusions to torture in this code, Tit. XXXIX. §§ 1, 2, and Tit. LXXVII. §§ 1, 2, also refer only to slaves, _coloni_, and _originarii_. Persons suspected of being fugitive slaves were always tortured to ascertain the fact, which is in direct contradiction to the principles of the Roman law.

[1460] L. Baioar. Tit. VIII. c. xviii. §§ 1, 2, 3.

[1461] L. Salic. First Text, Tit. XL. §§ 1, 2, 3, 4.—L. Emend. Tit. XLII. §§ 1, 2, 3, 4, 5.—In a treaty between Childebert and Clotair, about the year 593, there is, however, a clause which would appear to indicate that in doubtful cases slaves were subjected, not to torture, but to the ordeal of chance. “Si servus in furto fuerit inculpatus, requiratur a domino ut ad viginti noctes ipsum in mallum præsentet. Et si dubietas est, ad sortem ponatur” (Pact. pro Tenore pacis cap. v.—Baluz.). This was probably only a temporary international regulation to prevent frontier quarrels and reprisals. That it had no permanent force of law is evident from the retention of the procedures of torture in all the texts of the Salic law, including the revision by Charlemagne.

[1462] First Text, Tit. XL. § 4.—MS. Monaster. Tit. XL. § 3.—L. Emend. Tit. XLII. § 6.

[1463] Grimnismal, Thorpe’s Sæmund’s Edda, I. 20.

[1464] Greg. Turon. Hist. Franc. Lib. VII. c. xx.; Lib. VIII. cap. xxxi. Also, Lib. V. cap. xxxvii.—Aimoin. Lib. III. c. xxx. xlii. li. lxiv. lxvii.—Flodoard. Hist. Remens. Lib. ii. c. ii.—Greg. Turon. Miraculorum Lib. I. cap. 73.

[1465] Gregor. Turon. Hist. Franc. Lib. V. c. xlix.

[1466] Edict. Theodor. cap. c. ci. cii.

[1467] Cassiodor. Variar. iv. xxii. xxiii.

[1468] L. Wisigoth. Lib. VI. Tit. i. l. 5.

[1469] Ibid.

[1470] Ibid. II. iv. 4.

[1471] Ibid. VI. i. 4; VII. vi. 1; VIII. iv. 10, 11.

[1472] L. Wisigoth. VI. i. 1.

[1473] Ibid. VI. i. 2.

[1474] Concil. Toletan. XIII. ann. 683, can. ii.

[1475] See the Fuero Juzgo, Lib. I. Tit. iii. l. 4; Tit. iv. l. 4.—Lib. III. Tit. iv. ll. 10, 11.—Lib. VI. Tit. i. ll. 2, 4, 5.—Lib. VII. Tit. i. l. 1; Tit. vi. l. 1. The only points in which these vary from the ancient laws are that, in Lib. VI. Tit. i. l. 2, adultery is not included among the crimes for suspicion of which nobles can be tortured, and that the accuser is not directed to conduct the torture. In Lib. VII. Tit. i. l. 1, also, the informer who fails to convict is condemned only in a single fine, and not ninefold; he is, however, as in the original, declared infamous, as a _ladro_; if a slave, the penalty is the same as with the Wisigoths.

[1476] Jacobi Regis constitutio adversus Judæos, etc. c. xiii. (Marca Hispanica, p. 1416).

[1477] Partidas, P. VII. Tit. i. l. 26.

[1478] Ibid. P. VII. Tit. ix. l. 16.

[1479] Ca por los tormentos saben los judgadores muchas veces la verdad de los malos fechos encubiertos, que non se podrian saber dotra guisa.—Ibid. P. VII. Tit. xxx. l. 1.

[1480] Por premia de tormentos ó de feridas, ó por miedo de muerte ó de deshonra que quieren facer á los homes, conoscen á las vegadas algunas cosas que de su grado non las conoscerien: e por ende decimos que la conoscencia que fuere fecha en algunas destas maneras que non debe valer nin empesce al que la Face.—Ibid. P. III. Tit. xiii. l. 5.

[1481] Partidas, P. VII. Tit. xxx. l. 4.—Porque la conoscencia que es fecha en el tormento, si non fuere confirmada despues sin premia, non es valedera.

[1482] Alvari Pelagii de Planctu Ecclesiæ, Lib. II. Art. xli.

[1483] Partidas, P. VII. Tit. xxx. l. 2. Except the favor shown to the learned professions, “por honra de la esciencia,” which afterwards became general throughout Europe, these provisions may all be found in the Roman law—Const. 4 Cod. IX. viii.; L. 3, Dig. XLVIII. xix.; L. 10, Dig. XLVIII. xviii.; Const. 11 Cod. IX. xli.

[1484] Partidas, P. VII. Tit. xxx. l. 5.—Imitated from L. 18, Dig. XLVIII. xviii.

[1485] Partidas, P. VII. Tit. xxx. l. 7. Cf. Tacit. Annal. XIV. xliii.-xlv.

[1486] Partidas, P. VII. Tit. xxx. l. 16.

[1487] Ibid. P. III. Tit. xvi. l. 43.—P. VII. Tit. xxx. l. 8.

[1488] Partidas, P. VII. Tit. i. l. 26, “Home mal enfamado.”—P. VII. Tit. xxx. l. 3, “Et si fuere home de mala fame ò vil.”

[1489] Ibid. P. VII. Tit. i. l. 26.

[1490] Ibid. P. VII. Tit. xxx. l. 4; Tit. ix. l. 16.

[1491] Ibid. P. VII. Tit. xxx. l. 9.

[1492] Ibid. P. III. Tit. xxiii. l. 13.

[1493] Partidas, P. VII. Tit. xxx. l. 1.

[1494] Ordenamiento de Alcalà, Tit. xxviii. l. 1.

[1495] Simancas, however, states that a single repetition of the torture was allowable.—De Cathol. Instit. Tit. LXV. No. 76.

[1496] De Cathol. Instit. Tit. LXV. No. 44-48. Cf. Novísima Recopilacion, Lib. VI. Tit, ii. leis 4 y 5 (Ed. 1775).

[1497] Villadiego, Gloss, ad Fuero Juzgo, Lib. VI. Tit. i. l. 2, Gloss. _c_, _d_, _e_, _f_, _g_.

[1498] Novísima Recopilacion, Lib. II. vii. leis 1 y 13.

[1499] Villadiego, _op. cit._ Lib. VI. Tit. i. 1. 5, Gloss. _b_, _c_.

[1500] Simancæ de Cathol. Instit. Tit. LXV. No. 8.

[1501] Novísima Recopilacion, Lib. II. Tit. vi. lei 6; Lib. VIII. Tit. i. lei 4. Aragon is said to have been an exception as regards the use of torture (Gomez Var. Resolut. T. III. c. 13—_ap._ Gerstlacher. de Quæst. per Torment. p. 68). In Navarre there is no trace of the use of torture prior to the fifteenth century.—G. B. de Lagrèze, La Navarre Française, II. 342.

[1502] Capit. Carol. Mag. II. ann. 805, § xxv. (Baluz.). No other interpretation can well be given of the direction “diligentissime examinatione constringantur si forte confiteantur malorum quæ gesserunt. Sed tali moderatione fiat eadem districtio ne vitam perdant.”

[1503] Capitul. Lib. VI. cap. cxxix.

[1504] Non solum se tradunt sed ultro etiam non admoti quæstionibus omnem technam hujus rebellionis detegunt.—Goldast. Constit. Imp. I. 151.

[1505] Non licet presbytero nec diacono ad trepalium ubi rei torquentur stare.—Concil. Autissiodor. ann. 578, can. xxxiii.

Ad locum examinationis reorum nullus clericorum accedat.—Concil. Matiscon. II. ann. 585, can. xix.

[1506] Under Charlemagne and Louis le Débonnaire seems to have commenced the usage of holding the court under shelter. Thus Charlemagne, “Ut in locis ubi mallus publicus haberi solet, tectum tale constituatur quod in hiberno et in æstate observandus esse possit” (Capit. Carol. Mag. II. ann. 809, § xiii.). See also Capit. I. eod. ann. § xxv. Louis le Débonnaire prohibits the holding of courts in churches, and adds, “Volumus utique ut domus a comite in locum ubi mallum teneri debet construatur ut propter calorem solis et pluviam publica utilitas non remaneat” (Capit. Ludov. Pii. I. ann. 819, § xiv.).

[1507] In 769, we find Charlemagne commanding the presence of all freemen in the general judicial assembly held twice a year, “Ut ad mallum venire nemo tardet, unum circa æstatem et alterum circa autumnum.” At others of less importance, they were only bound to attend when summoned, “Ad alia vero, si necessitas fuerit, vel denunciatio regis urgeat, vocatus venire nemo tardet” (Capit. Carol. Mag. ann. 769, § xii.).

In 809, he desired that none should be forced to attend unless he had business, “Ut nullus ad placitum venire cogatur, nisi qui caussam habet ad quærendam” (Capit. I. ann. 809, § xiii.).

In 819, Louis ordered, that the freemen should attend at least three courts a year, “et nullus eos amplius placita observare compellat, nisi forte quilibet aut accusatus fuerit, aut alium accusaverit, aut ad testimonium perhibendum vocatus fuerit” (Capit. Ludov. Pii. V. ann. 819, § xiv.).

[1508] Placuit ut adversus absentes non judicetur. Quod si factus fuerit prolata sententia non valebit.—Capit. Lib. V. § cccxi.

[1509] This right of appeal was not relished by the seigneurs, who apparently foresaw that it might eventually become the instrument of their destruction. It was long in establishing itself, and was resisted energetically. Thus the Kings of England who were Dukes of Aquitaine, sometimes discouraged the appeals of their French subjects to the courts of the King of France by hanging the notaries who undertook to draw up the requisite papers.—Meyer, Instit. Judiciaires, I. 461.

[1510] Annalist. Saxo ann. 928.

[1511] Dithmari Chron. Lib. VII. ad. fin.

[1512] Multa dissimulatione renitebant, adeo ut nullis suppliciis possent cogi ad confessionem.—Synod. Atrebatens. ann. 1025 (Hartzheim III. 68).

[1513] Hermannus de S. Mariæ Lauden. Mirac. Cf. Guibert. Noviogent. de Vita Sua. cap. xvi.

[1514] “Cumque captum eduxissit Isaac, virgis et vinculis coactum et flagellatum constringit, et ita extorsit ab eo ut reos in comitis traditione proderet.”—Galberti Vit. Caroli Boni cap. ix. n. 66.

[1515] Chron. Montis Sereni (Mencken. Script. Rer. Germ. II. 172).

[1516] Radulf. de Coggeshale Chron. Anglic. ann. 1192.

[1517] Hildebert. Cenoman. Epist. xxx.

[1518] Feudor. Lib. II. Tit. xxvii. § 8.

[1519] Fred. II. Lib. Rescript. II. §§ 1, 6. (Goldast. Constit. Imp. II. 54).

[1520] Erphurdianus Variloquus, ann. 1125.

[1521] Annal. Bosovienses, ann. 1129.

[1522] Cod. Epist. Rudolphi I. p. 216-7 (Lipsiæ, 1806).

[1523] Cosmæ Pragens. Lib. III. ann. 1108.

[1524] Annalist. Saxo ann. 1123. See also, about the same date, the Chron. S. Trudon. Lib. XII. (D’Achery II. 704); and the Epist. Friderici Episc. Leodiens. in Martene, Ampliss. Collect. I. 654.

[1525] Gerardi Hist. Compostellan. Lib. II. cap. 80.

[1526] Anglo Saxon Chronicle, ann. 1137.

[1527] Pike, History of Crime in England, I. 427.

[1528] Jaffé Regesta p. 884.

[1529] Matt. Paris. Hist. Ang. ann. 1210.

[1530] Synod. Roman. ann. 384, can. 10.

[1531] Innocent PP. I. Epist. III. cap. iii.

[1532] De Civ. Dei Lib. XIX. cap. vi.

[1533] Gregor. PP. I. Lib. VIII. Epist. xxx.

[1534] Nicolai PP. I. Epist. xcvii. § 86.

[1535] Pseudo-Alexand. decret. “Omnibus orthodoxis.”

[1536] Ministrorum confessio non sit extorta sed spontanea.—Ivon. Panorm. IV. cxvii.

[1537] Quod vero confessio cruciatibus extorquenda non est.—C. I. Decreti Caus. XV. q. vi.

[1538] Cæsarius of Heisterbach, writing in 1221, gives a story of an occurrence happening in 1184 which, if not embellished by some later transcriber, would seem to indicate that the judicial use of torture was known at an earlier period than is stated in the text. A young girl, in the disguise of a man, was despatched with letters to Lucius III. by the partisans of Wolmar in his struggle with Rudolph for the bishopric of Trèves. Near Augsburg she was joined by a robber, who, hearing his pursuers approaching, gave her his bag to hold while he retired on some pretext to a thicket. Captured with the stolen property she was condemned, but she told her story to a priest in confession, the wood was surrounded and the robber captured. He was tortured until he confessed the crime. Then he retracted, and the question between the two was settled, at the suggestion of the priest, by the ordeal of hot iron, when the robber’s hand was burnt, and the girl’s uninjured. The tale is a long one, very romantic in its details, and may very probably have been ornamented by successive scribes.—Cæsar. Heisterb. Dial. Mirac. Dist. I. c. xl.

[1539] Assises de Jerusalem, Baisse Court, cap. cclix.

[1540] Lib. Juris Civilis Veronæ cap. 75 (p. 61).

[1541] Constit. Sicular. Lib. I. Tit. xxvii.

[1542] Du Boys, Droit Criminel des Peup. Mod. II. 405.

[1543] Monach. Paduan. Chron. Lib. II. ann. 1252-3 (Urstisii Script. Rer. German. p. 594).—Quotidie diversis generibus tormentorum indifferenter tam majores quam minores a carnificibus necabuntur. Voces terribiles clamantum in tormentis die noctuque audiebantur de altis palatiis.... Quotidie sine labore, sine conscientiæ remorsione magna tormenta et inexcogitata corporibus hominum infligebat, etc.

[1544] Mevii Comment. in Jus Lubecense, Lib. IV. Tit. vi. Art. 4 (Francofurt. 1664).

[1545] Concil. Lateran. IV. can. iii.—Goldast. Constit. Imp. I. 293-5.—Harduin. Concil. VII. 164. See above, p. 89.

[1546] Teneatur præterea potestas seu rector omnes hæreticos quos captos habuerit, cogere citra membri diminutionem et mortis periculum, tanquam vere latrones et homicidas animarum et fures sacramentorum Dei et fidei Christianæ, errores suos expresse fateri et accusare alios hæreticos quos sciunt, et bona eorum, et credentes et receptatores et defensores eorum, sicut coguntur fures et latrones rerum temporalium accusare suos complices et fateri maleficia quæ fecerunt.—Innocent IV. Bull. _Ad extirpanda_ § 26.

[1547] Alex. P. P. IV. Bull. _Ut negotium_, 7 Julii, 1256 (MSS. Doat, XXXI. 196).—Ripoll. Bullar. Ord. Prædic. I. 430.—Mag. Bullar. Roman. I. 132.

[1548] Trac. de Hæres. Paup. de Lugd. (Martene Thesaur. V. 1787). In the tract, Frederic II., who died in 1250, is spoken of as “quondam imperator.”

[1549] Clamor validus et insinuatio luctuosa fidelium subditorum ... processus suos in inquisitionis negotio a captionibus, quæstionibus et excogitatis tormentis incipiens personas quas pro libito asserit hæretica labe notatas, abnegasse Christum ... vi vel metu tormentorum fateri compellit.—Lit. Philip. Pulchri (Vaissette, Hist. Gén. de Languedoc, T. IV. Preuves p. 118).

[1550] The fearful details of torture collected by Raynouard (Mon. Hist. rel. à la Condamnation des Chev. du Temple) show that the Inquisition by this time was fully experienced in such work.

[1551] Simancæ de Christ. Instit. Tit. LXV. No. 19.—To the Inquisition is likewise attributable another of the monstrous iniquities of criminal justice—the denial to the accused of the assistance of counsel. Under the customary law of the feudal courts, the avocat or “avantparlier” was freely admitted, but such privilege was incompatible with the arbitrary process of which the sole object was to condemn for a crime scarce susceptible of proof. The decretal against heretics issued in 1235 by Gregory IX. forbids all judges, advocates, and notaries from helping the suspected heretic under pain of perpetual deprivation of function—“Item, judices, advocati, et notarii nulli eorum officium suum impendant; alioquin eodem officio perpetuo sint privati” (Harduin. Concil. VII. 164); and the same rule was enjoined “ne Inquisitionis negotium per advocatorum strepitum retardetur” by the Council of Valence (can. xi.) in 1248 and that of Alby (can. xxiii.) in 1254 (Harduin. VII. 426, 461).

[1552] Personas autem honestas vel bonæ famæ, etiam si sint pauperes, ad dictum testis unici, tormentis seu quæstionibus inhibemus, ne ob metum falsum confiteri, vel suam vexationem redimere compellantur.—Fontanon, Edicts et Ordonn. I. 701.—A somewhat different reading is given by Isambert, Anciennes Loix Françaises I. 270.

[1553] Cil qui est pris et mis en prison, soit por meffet ou por dete, tant comme il est en prison il n’est tenus à respondre à riens c’on li demande fors es cas tant solement por quoi il fu pris. Et s’on li fet respondre autre coze contre se volenté, et sor ce qu’il allige qu’il ne veut pas respondre tant comme il soit en prison; tout ce qui est fait contre li est de nule valeur, car il pot tout rapeler quand il est hors de prison.—Beaumanoir, cap. LII. § xix.

[1554] Quant tel larrecin sunt fet, le justice doit penre toz les souspeçonneus et fere moult de demandes, por savoir s’il porra fere cler ce qui est orbe. Et bien les doit en longe prison tenir et destroite, et toz cex qu’il ara souspechonneus par malvese renommée. El si’l ne pot en nule maniere savoir le verité du fet, il les doit delivrer, se nus ne vient avant qui partie se voille fere d’aus acuser droitement du larrecin.—Ibid. cap. XXXI. § vi.

[1555] Si li bons n’est connoissans de son mesfet, ou s’il l’a coneu et ce a esté par covent, s’en li fait jugement, apeler en puet.—Conseil, ch. xxii. art. 28 (Édition Marnier, Paris, 1846).

[1556] Tanon, Registre Criminel de la justice de S. Martin-des-Champs, Introd. p. lxxxvi. (Paris, 1877); Vaissette, Ed. Privat, VIII. 1348.—L’Oiseleur (Les Crimes et les Peines, Paris, 1863, p. 113) says that it was enacted for the baillages of Beauvais and Cahors, but we have seen from Beaumanoir that torture was not used in the Beauvoisis.

[1557] Baluz. Concil. Gall. Narbon. p. 75.

[1558] Chassaing, Spicilegium Brivatense, p. 92.

[1559] Conseil ch. xxi. art. 8.

[1560] Fontaines, Conseil, art. 14. Et encor ne puisse li vileins fausser le jugement son seignor.

[1561] Actes du Parlement de Paris, I. 382 (Paris, 1863).

[1562] Olim. T. II. p. 451.

[1563] Olim. III. 49-50.

[1564] Ibid. III. 185-6.

[1565] Olim. III. 221-2.

[1566] Ibid. III. 505-6.

[1567] Ibid. III. 751-2.

[1568] Ibid. III. 1299.

[1569] Guill. de Nangis Continuat. ann. 1304.

[1570] Ibid. ann. 1314.

[1571] Ibid. ann. 1315.

[1572] Grandes Chroniques, T. V. p. 221 (Ed. Paris, 1837).

[1573] Isambert, Anciennes Loix Françaises, III. 131, 60, 65.

[1574] Ordonnance, 1^{ier} Avril, 1315, art. xix. (Ibid. III. 58).

[1575] Cart. Norman I. Mar. 1315, cap. xi. Cart. II. Jul. 1315, cap. xv. (Ibid. 51, 109).

[1576] Ordonn. Mai 1315, art. v. xiv. (Bourdot de Richebourg, III. 233-4).

[1577] Ordonn. Mars 1315, art. ix. (Ibid. p. 235). This ordonnance is incorrectly dated. It was issued towards the end of May, subsequently to the above.

[1578] Ordonn. Jul. 1319, art. xxii. (Isambert, III. 227).

[1579] Tout Lieu de Saint Disier, cap. cclxxii. (Olim, T. II. Append, p. 856).

[1580] Ibid. cap. cclxxiii.

[1581] Roisin, Franchises, Lois et Coutumes de Lille, p. 119. Thus, “on puet et doit demander de veir et de oir,” but when this is impossible, “on doit et puet bien demander et enquerre de croire et cuidier. Et sour croire et sour cuidier avoec un veritet aparent de veir et d’oir, et avoec l’omechide aparant, on puet bien jugier, lonc l’usage anchyen, car d’oscure fait oscure veritet.”

[1582] Rabanis, Revue. Hist, de Droit, 1861, p. 515.—No volgoren los savis antiquament qu’om pergossa sa franquessa ni sa libertat.

[1583] Registre Criminel de la Justice de St. Martin-des-Champs, p. 50.

[1584] Du Cange s. v. _Quæstionarius_.

[1585] Letters granting exemption from torture to the consuls of Villeneuve for any crimes committed by them were issued in 1371 (Isambert, V. 352). These favors generally excepted the case of high treason.

[1586] He pleaded his rank as baron as an exemption from the torture, but was overruled. Dumoulin, however, admits that persons of noble blood are not to be as readily exposed to it as those of lower station.—Desmaze, Les Pénalités Anciennes, d’après des Textes inédits, p. 39 (Paris, 1866).

[1587] Du Cange s. v. _Quæstio_ No. 3.

[1588] Pour denier mettre à question et tourment.—Jean Desmarres, Décisions, Art. 295 (Du Boys, Droit Criminel II. 48).

[1589] L. Tanon, Registre Criminel de la Justice de S. Martin-des-Champs, Introd. p. lxxxv. (Paris, 1877).

[1590] Registre Criminel du Châtelet de Paris. Publié pour la première fois par la Société des Bibliophiles Français. 2 tom. 8vo. Paris, 1864.

[1591] Ibid. I. 9, 14.

[1592] Ibid. I. 143. See also the similar case of Raoulin du Pré (p. 149), who recanted on the scaffold and protested his innocence “sur la mort qu’il attendoit à avoir et recevoir presentement,” but who nevertheless was executed. Also that of Perrin du Quesnoy (p. 164).

[1593] See the case of Berthaut Lestalon (Ibid. p. 501) accused of sundry petty thefts and tortured unsuccessfully. The court decided that in view of the little value of the articles stolen and of their having been recovered by the owners, the prisoner should be tortured again, when, if he confessed, he should be hanged, and if he still denied, he should have his right ear cropped and be banished from Paris. This logical verdict was carried out. No confession was obtained, and he was punished accordingly. Somewhat similar was the case of Jehan de Warlus (Ibid. p. 157), who was punished after being tortured five times without confession; also that of Jaquet de Dun (Ibid. p. 494).

[1594] In the Registre Criminel de St. Martin-des-Champs the cases are recorded with too much conciseness to give details as to the process, only the charge and the sentence being stated. It frequently happens, however, that a man convicted of some petty larceny is stated to have confessed more serious previous crimes, which necessarily implies their confession being extorted. See, for instance, the case of Jehannin Maci, arrested in 1338 for having in his possession two brass pots, the stealing of which he not only confessed but also “plusures murtres et larrecins avoir fais” for which he was duly drawn on a hurdle and hanged (_op. cit._ pp. 120-1). The case of Phelipote de Monine (p. 178) is also suggestive.

[1595] Registre Criminel du Châtelet de Paris, I. 36.

[1596] Ibid. I. 201-209.—Somewhat similar was the case of Marguerite de la Pinele (Ibid. p. 322), accused of stealing a ring, which she confessed under torture. As she did not, however, give a satisfactory account of some money found upon her, though her story was partially confirmed by other evidence, she was again twice tortured. This was apparently done to gratify the curiosity of her judges, for, though no further confession was extracted from her, she was duly buried alive.

Crimes for which a man was hanged or decapitated were punished in a woman by burying or burning. Jews were executed by being hanged by the heels between two large dogs suspended by the hind legs—a frightful death, the fear of which sometimes produced conversion and baptism on the gallows (Ibid. II. 43).

[1597] Ibid. I. pp. 1, 268, 289; II. 66, etc.

[1598] Ibid. I. 419-475.—The same result is evident in a very curious case in which an old sorceress and a young “fille de vie” were accused of bewitching a bride and groom, the latter of whom had been madly loved by the girl (Ibid. I. p. 327).

[1599] Ibid. I. 516.

[1600] Ibid. I. 151, 163, 164, 173-77, 211, 269, 285, 306, 350, etc.

[1601] See, for instance, the case of Pierre Fournet (Ibid. I. 516).

[1602] Très Ancienne Cout. de Bretagne, cap. CI. (Bourdot de Richebourg IV. 224-5)—“Et s’il se peut passer sans faire confession en la gehenne, ou les jons, il se sauveroit, et il apparestroit bien que Dieu montreroit miracles pour luy.”

[1603] Concil. Remens. ann. 1408, cap. 49 (Martene Ampliss. Collect. VII. 420).

[1604] Bull. Aur. cap. xxiv. § 9 (Goldast. I. 365).

[1605] Chron. Cornel. Zantfleit, ann. 1376 (Martene Ampl. Coll. V. 308-9).

[1606] Statut. Criminali cap. xiv. (Gregorj, Statuti di Corsica, p. 101).

[1607] Ibid. cap lx. (p. 163).

[1608] Statuta Criminalia Mediolani e tenebris in lucem edita, cap. 3, 24-28 (Bergomi, 1694).

[1609] Statuti della Terra del Comune della Mirandola, Modena, 1885, p. 91.

[1610] Statuta et Decreta antiqua Civitatis Placentiæ, Lib. v. Rubr. 96 (Placentiæ, 1560, fol. 63_b_).

[1611] Statuts de l’Inquisition d’Etat, 1^e Supp. §§ 20, 21 (Daru).

[1612] Li Statuti de Valtellina Riformati nella Cità di Coira nell’ anno del S. MDXLVIII. Stat. Crimin. cap. 8, 9, 10 (Poschiavo, 1549).

[1613] Synod. Reg. ann. 1514, Proœm. (Batthyani Legg. Eccles. Hung. I. 574). According to some authorities, this was a general rule—“Judex quamvis viderit committi delictum non tamen potest sine aliis probationibus reum torquere, ut per Specul. etc.”—Jo. Emerici a Rosbach Process. Criminal. Tit. V. cap. v. No. 13 (Francof. 1645).

[1614] Du Boys, Droit Criminel, I. 650.

[1615] Jo. Herb. de Fulstin. Statut. Reg. Polon. (Samoscii, 1597, p. 7).

[1616] Esneaux, Hist. de Russie, III. 236.

[1617] Pauli Jovii Moschovia.—This is a brief account of Russia, compiled about the year 1530, by Paulus Jovius, from his conversations with Dmitri, ambassador to Clement VII. from Vasili V., first Emperor of Russia. Olaus Magnus, in the pride of his Northern blood, looks upon the statement in the text as a slander on the rugged Russ—“hoc scilicet pro terribili tormento in ea durissima gente reputari, quæ flammis et eculeis adhibitis, vix, ut acta revelet, tantillulum commovetur”—and he broadly hints that the wily ambassador amused himself by hoaxing the soft Italian: “Sed revera vel ludibriose bonus præsul a versuto Muscovitici principis nuntio Demetrio dicto, tempore Clementis VII. informatus est Romæ” (Gent. Septent. Hist. Brev. Lib. XI. c. xxvi.). The worthy archbishop doubtless spoke of his own knowledge with respect to the use of the rack and fire in Russia, but the contempt he displays for the torture of a stream of water is ill-founded. In our prisons the punishment of the shower-bath is found to bring the most refractory characters to obedience in an incredibly short time, and its unjustifiable severity in a civilized age like this may be estimated from the fact that it has occasionally resulted in the death of the patient. Thus, at the New York State Prison at Auburn, in December, 1858, a strong, healthy man, named Samuel Moore, was kept in the shower-bath from a half to three-quarters of an hour, and died almost immediately after being taken out. A less inhumane mode of administering the punishment is to wrap the patient in a blanket, lay him on his back, and, from a height of about six feet, pour upon his forehead a stream from an ordinary watering-pot without the rose. According to experts, this will make the stoutest criminal beg for his life in a few seconds.

During the later period of our recent war, when the prevalence of exaggerated bounties for recruits led to an organized system of desertion, the magnitude of the evil seemed to justify the adoption of almost any means to arrest a practice which threatened rapidly to exhaust the resources of the country. Accordingly, the shower-bath was occasionally put into requisition by the military authorities to extort confession from suspected deserters, when legal evidence was not attainable, and it was found exceedingly efficacious.

[1618] Du Boys, _op. cit._ I. 618.

[1619] Quod iidem prælati et inquisitores de ipsis Templariis et eorum corporibus, quotiens voluerint, ordinent et faciant id quod eis, secundum legem ecclesiasticam, videbitur faciendum.—Rymer, Fœdera, III. 203.

[1620] C. 1 § 1 Clement, V. 3.—Bern. Guidonis Gravamina (MSS. Doat, XXX.).

[1621] Haroldus, Lima limata Conciliis etc. Romæ, 1672, pp. 75, 76.

[1622] Statut. S. Ludov. ann. 1254, §§ 20, 21 (Isambert, I. 270).

[1623] Thus Gratian, in the middle of the twelfth century—“Qui calumniam illatam non probat pœnam debet incurrere quam si probasset reus utique sustineret.”—Decreti P. II. caus. v. quæst. 6, c. 2.

[1624] Ordonnance, Mars 1498, §§ 110-116 (Isambert, XI. 365.—Fontanon, I. 710). It would seem that the only torture contemplated by this ordonnance was that of water, as the clerk is directed to record “la quantité de l’eau qu’on aura baillée audit prisonnier.” This was administered by gagging the patient, and pouring water down his throat until he was enormously distended. It was sometimes diversified by making him eject the water violently, by forcible blows on the stomach (Fortescue de Laudibus Legg. Angliæ, cap. xxii.). Sometimes a piece of cloth was used to conduct the water down his throat. To this, allusion is made in the “Appel de Villon”:—

“Se fusse des hoirs Hue Capel Qui fut extraict de boucherie, On ne m’eust, parmy ce drapel, Faict boyre à celle escorcherie.”

[1625] Ordonn. de Villers Cotterets, Août 1539, §§ 162-164 (Isambert, XIII. 633-4). “Ostant et abolissant tous styles, usances ou coutumes par lesquels les accusés avoient accoutumés d’être ouïs en jugement pour sçavoir s’ils devoient être accusés, et à cette fin avoir communication des faits et articles concernant les crimes et délits dont ils étoient accusés.”

[1626] Anc. Cout. de Bretagne, Tit. I. art. xli.—D’Argentré’s labored commentary on this article is a lamentable exhibition of the utter confusion which existed as to the nature of preliminary proof justifying torture. Comment. pp. 139, sqq.

[1627] Nemo igitur de proprio crimine confitentem super conscientia scrutetur aliena.—Const. 17 Cod. IX. ii. (Honor. 423).

[1628] Nemini de se confesso credi potest super crimen alienum, quoniam ejus atque omnis rei professio periculosa est, et admitti adversus quemlibet non debet.—Pseudo-Julii Epist. II. cap. xviii.—Gratian. Decret. P. II. caus. v. quæst. 3, can. 5.

[1629] Inhærendo decretis alias per felicis recordationis Paulum papam quartum Sanctissimus dominus noster Pius papa quintus decrevit omnes et quoscunque reos convictos et confessos de heresi pro ulteriori veritate habenda et super complicibus fore torquendos arbitrio dominorum judicum.—Locati Opus Judiciale Inquisitorum, Romæ, 1570, p. 477.

[1630] Chéruel, Dict. Hist. des Institutions, etc. de la France, p. 1220 (Paris, 1855).

[1631] Isambert, XIV. 88. Beccaria comments on the absurdity of such proceedings, as though a man who had accused himself would make any difficulty in accusing others.—“Quasi che l’uomo che accusa sè stesso, non accusi più facilmente gli altri. E egli giusto il tormentare gli uomini per l’altrui delitto?”—Dei Delitte e delle Pene, § XII. A curious illustration of its useless cruelty when applied to prisoners of another stamp is afforded by the record of a trial which occurred at Rouen in 1647. A certain Jehan Lemarinier, condemned to death for murder, was subjected to the _question définitive_. Cords twisted around the fingers, scourging with rods, the strappado with fifty pounds attached to each foot, the thumbscrew were applied in succession and together, without eliciting anything but fervent protestations of innocence. The officials at last wearied out remanded the convict to prison, when he sent for them and quietly detailed all the particulars of his crime, committed by himself alone, requesting especially that they should record his confession as having been spontaneous, for the relief of his conscience, and not extorted by torment.—Desmaze, Les Pénalités Anciennes, p. 159, Paris, 1866.

[1632] Ordonnance Criminel d’Août 1670, Tit. xiv. xix. (Isambert, XIX. 398, 412).

[1633] Nicolas, Dissertation Morale et Juridique sur la Torture, p. 111 (Amsterd. 1682).

[1634] Déclaration du 13 Avril 1703 (Ordonnances d’Alsace, I. 340).

[1635] Coutumier de Picardie, Éd. Marnier, p. 88.

[1636] Registre Criminel de la Justice de S. Martin-des-Champs. Paris, 1877, p. 229.

[1637] Desmaze, Pénalités Anciennes, p. 204.

[1638] Bodini de Magor. Dæmonoman. Basil. 1581, pp. 325, 334, 390.

[1639] Scialojæ Praxis torquendi Reos c. i. No. 12 (Neap. 1653).

[1640] Thomæ Grammatici Decisiones Neapolitanæ, pp. 1275-6 (Venetiis 1582). Cf. Scialojæ _op. cit._ c. i. No. 22.

[1641] L’Oiseleur, Les Crimes et les Peines, pp. 206-7.

[1642] Braune Dissert. de Tortura Valetudinar. Halæ Cattor. 1740, p. 28.

[1643] Meyer, Institutions Judiciaires, IV. 285, 293.

[1644] Legg. Capital. Caroli V. c. lx. lviii.

[1645] Ibid. c. xx. lviii.

[1646] Ibid. c. lv. lvi. lvii.

[1647] Legg. Capital. Carol. V. c. xxii. lxix.

[1648] Ibid. c. xxviii.

[1649] Ibid. c. xxiii. xxi.

[1650] Ibid. c. xxxiii.-xliv.

[1651] Ibid. c. xx. lxi.

[1652] Ibid. c. lviii. lix. Accusatus, si periculum sit, ne inter vel post tormenta ob vulnera expiret, ea arte torquendus est, ne quid damni accipiat.

[1653] Heineccii Hist. Jur. Civ. Lib. II. §§ cv. sqq.—Meyer (Instit. Judiciaires, Liv. VI. chap. xi.) gives a very interesting sketch of the causes which led to the overthrow of the old system of jurisprudence throughout Germany. He attributes it to the influence of the emperors and the municipalities, each equally jealous of the authority of the feudal nobles, aided by the lawyers, now becoming a recognized profession. These latter of course favored a jurisprudence which required long and special training, thus conferring upon them as a class peculiar weight and influence.

[1654] My principal authorities are:—

Rerum Criminalium Praxis, by Josse Damhouder, a lawyer and statesman of repute in Flanders, where he held a distinguished position under Charles V. and Philip II. His work was received as an authority throughout Europe for two centuries, having passed through numerous editions, from that of Louvain, in 1554, to that of Antwerp, in 1750. My edition is of Antwerp, 1601.

Tractatus de Quæstionibus seu Torturis Reorum, published in 1592 by Johann Zanger, of Wittenberg, a celebrated jurisconsult of the time, and frequently reprinted. My edition is that of 1730, with notes by the learned Baron Senckenberg, and there is a still later one, published at Frankfort in 1763.

Practica Criminalis, seu Processus Judiciarius ad usum et consuetudinem judiciorum in Germania hoc tempore frequentiorem, by Johann Emerich von Rosbach, published in 1645 at Frankfort on the Mayn.

Tractatio Juridica, de Usu et Abusu Torturæ, by Heinrich von Boden, a dissertation read at Halle in 1697, and reprinted by Senckenberg in 1730, in conjunction with the treatise of Zanger.

Scialojæ Praxis torquendi Reos, Neapoli, 1653.

Tractatus de Maleficiis, nempe D. Alberti de Gandino, D. Bonifacii de Vitalianis, D. Pauli Grillandi, D. Baldi de Periglis, D. Jacobi de Arena. Venetiis, 1560.

[1655] Cum nihil tam severum, tam crudele et inhumanum videatur quam hominem conditum ad imaginem Dei ... tormentis lacerare et quasi excarnificare, etc.—Zangeri Tract. de Quæstion. cap. I. No. 1.

Tormentis humanitatis et religionis, necnon jurisconsultorum argumenta repugnant.—Jo. Emerici a Rosbach. Process. Crimin. Tit. v. c. ix. No. 1.

Saltem horrendus torturæ abusus ostendit, quo miseri, de facinore aliquo suspecti, fere infernalibus, et si fieri possit, plusquam diabolicis cruciatibus exponuntur, ut qui nullo legitimo probandi modo convinci poterant, atrocitate cruciatuum contra propriam salutem confiteri, seque ita destruere sive jure sive injuria, cogantur.—Henr. de Boden Tract. Præfat.

[1656] Zangeri cap. I. Nos. 49-58.

[1657] Zangeri cap. I. Nos. 59-88.—Knipschild, in his voluminous “Tract. de Nobilitate” (Campodun. 1693), while endeavoring to exalt to the utmost the privileges of the nobility, both of the sword and robe, is obliged to admit their liability to torture for these crimes, and only urges that the preliminary proof should be stronger than in the case of plebeians (Lib. II. cap. iv. Nos. 108-120); though, in other accusations, a judge subjecting a noble to torture should be put to death, and his attempt to commit such an outrage could be resisted by force of arms (Ibid. No. 103). He adds, however, that no special privileges existed in France, Lombardy, Venice, Italy, and Saxony (Ibid. Nos. 105-7). Scialoja expressly says (Praxis c. xiii. Nos. 40-49, 55) that in Naples no dignity, secular or ecclesiastical, except that of judges, conferred immunity from torture; and all privileges were set aside by a direct order from the sovereign.

[1658] Erphurdianus Variloquus, ann. 1514 (Mencken. Script. Rer. German. II. 527-8).

[1659] Grillandi de Quæst. et Tortura Q. vi.—Baldi de Periglis de Quæstionibus c. iii. § 4.—Alberti de Gandino de Quæstionibus §§ 7, 9, 36, 37.

[1660] Damhouder. Rer. Crimin. Praxis cap. xxxvii. Nos. 23, 24. Cf. Passerini Regulare Tribunal Quæst. xv. Art. ix. No. 117.

[1661] Emer. a Rosbach Process. Crimin. Tit. v. cap. xiv.

[1662] Simancæ de Cathol. Instit. Tit. LXV. No. 50.

[1663] Willenbergii Tract. de Excess. et Pœnis Cleric. 4to. Jenæ, 1740, p. 41.

[1664] Braune Diss. de Tortura Valetudinar. p. 32.

[1665] Grillandi de Quæstione et Tortura, Q. vi. §§ 4, 6, 9.—Baldi de Periglis de Quæstionibus cap. i. § 4.

[1666] Zangeri _op. cit._ cap. I. Nos. 34-48.

[1667] Scialojæ c. xiii. No. 21.

[1668] Ibid. Nos. 24-30.

[1669] Goetzii Dissert. de Tortura, Lipsiæ, 1742, pp. 46-8.

[1670] Braune Diss. de Tortura Valetudinar. pp. 24, 43.

[1671] Zangeri cap. V. Nos. 73-83.

[1672] Del Rio Magicarum Disquisit. Lib. v. Sect. iii. L.

[1673] Damhouder. _op. cit._ cap. xxxviii. Nos. 3, 4.—Rosbach. Tit. V. cap. xv. No. 14.—Simancas, however, declares that only two applications of torture are allowable (De Cathol. Instit. Tit. LXV. Nos. 76, 81).

[1674] Disquis. Magicar. Lib. V. sect. ix.

[1675] Assessores tamen honoris et avidi et cupidi hoc non servant imo quotidie quæstiones repetunt absque novis indiciis.—Baldi de Periglis de Quæstionibus cap. i. § 6. So also Alberti de Gandino de Quæstionibus § 20, and Bonifacii de Vitalianis, Rubr. _Quæ Indicia_ § 8.

[1676] Zangeri Præfat. No. 31.

[1677] Scialojæ _op. cit._ cap. i. No. 27.

[1678] Statuta Criminalia Communis Bononiæ (Bononiæ, 1525, fol. 15 _a_).

[1679] Goetzii Dissert. de Tortura, pp. 52-3.

[1680] Zangeri Tract. Not. ad p. 903.

[1681] Grillandi de Quæst. et Tortura Q. vii.

[1682] Scialojæ _op. cit._ cap. i. No. 34.—Goetzii Dissert. de Tortura, p. 53.—Grillandi, _loc. cit._—Bernhard (Diss. Inaug. de Tort. cap. I. § iv.) states that in these cases not only the principals but even the witnesses could be tortured if suspected of concealing the truth.

[1683] Grillandi de Quæst. et Tortura, Q. V. § 6.

[1684] Baldi de Periglis de Quæstionibus cap. iii. § 2.—Damhoud. cap. xxxviii. No. 13.—Alberti de Gandino de Quæstionibus § 31.

[1685] Zangeri Præfat. No. 32.—Tortura enim datur non ad liquidandum factum sed personam.—Damhouder. Rer. Crimin. Prax. cap. xxxv. No. 7.

[1686] Process. Criminal. Tit. V. cap. ix. No. 17.

[1687] De Usu et Ab. Tort. Th. IX.—Qui aliter procedit judex, equum cauda frenat et post quadrigas caballum jungit.

[1688] Boyvin du Villars, Mémoires, Liv. VII.

[1689] Godelmanni de Magis Lib. III. cap. x.

[1690] Not. ad p. 907 Zangeri _op. cit._

[1691] Del Rio Magicar. Disquisit. Lib. V. sect. ix.

[1692] Grillandi de Quæst. et Tortura, Q. vi. § 10.

[1693] Simancæ de Cathol. Instit. Tit. LXV. No. 56.

[1694] De Usu et Abusu Tort. Th. XIII.

It must not be supposed from this and the preceding extracts that von Boden was an opponent of torture on principle. Within certain bounds, he advocated its use, and he only deplored the excessive abuse of it by the tribunals of the day.

[1695] Quando quis dicatur competenter tortus vel non, similiter quando quis dicatur purgasse indicia vel non, omnia ista demum relinquuntur arbitrio et discretioni honesti judicis, quoniam in his certa regula tradi non potest.—Grillandi de Quæst. et Tortura Q. vii. § 10.—Cf. Godelmanni de Magis Lib. III. cap. x. § 36.—Baldi de Periglis de Quæstionibus cap. i. § 5.

[1696] Zangeri _op. cit._ cap. I. Nos. 42-44.

[1697] Ibid. cap. III. Nos. 20-22.

[1698] Baldi de Periglis cap. iii. § 7.

[1699] Bonifacii de Vitalianis, Rubr. _de Perseverentia_ § 5.—Alberti de Gandino, De Quæstionibus § 35.

[1700] Godelmanni l. c. § 54.

[1701] Cap. xxxviii. No. 18.

[1702] Zangeri cap. III. Nos. 20-22.

[1703] Goetzii Dissert. de Tortura, p. 74.

[1704] So thoroughly was this recognized, that in 1668 Racine represents a judge, desirous of ingratiating himself with a young girl, as offering to exhibit to her the spectacle of the question as an agreeable pastime.

“DANDIN. N’avez vous jamais vu donner la question?

ISABELLE. Non, et ne le verrai, que je crois de ma vie.

DANDIN. Venez, je vous en veux faire passer l’envie.

ISABELLE. Hé! Monsieur, peut-on voir souffrir les malhereux?

DANDIN. Bon! cela fait toujours passer une heure ou deux.”

_Les Plaideurs_, Acte III. Sc. dernière.

[1705] Fortescue, in his arguments against the use of torture, does not fail to recognize that the acquittal of a tortured prisoner is the condemnation of the judge—“qui judex eum pronuntiet innocentem, nonne eodem judicio judex ille seipsum reum judicat omnis sævitiæ et pœnarum quibus innocentem afflixit?”—De Laud. Legg. Angl. cap. xxii.

[1706] Occurrit hic cautela Bruni dicentis, si judex indebite torserit aliquem facit reum confiteri quod fuit legitime tortus, de qua confessione faciat notarium rogatum.—Rosbach. Process. Crim. Tit. V. cap. xv. No. 6.

[1707] Quoted by Nicolas, Diss. Mor. et Jurid. sur la Torture, p. 21. This mode of torture consisted in placing the accused between two jailers, who pummelled him whenever he began to doze, and thus, with proper relays, deprived him of sleep for forty hours. Its inventor considered it humane, as it endangered neither life nor limb, but the extremity of suffering to which it reduced the prisoner is shown by its efficaciousness.

Marsigli received much credit for this ingenious invention. Grillandus informs us that he experimented with it in a difficult case of two monks “et profecto vidi ea quæ prius non credebam, quod illud affert maximum tormentum et fastidium in corpore absque aliqua membrorum læsione.”—Grillandi de Quæstione et Tortura Art. ii.

I have purposely abstained from entering into the details of the various forms of torture. They may be interesting to the antiquarian, but they illustrate no principle, and little would be gained by describing these melancholy monuments of human error. Those who may be curious in such matters will find ample material in Grupen Observat. Jur. Crim. de Applicat. Torment., 4to., Hanov. 1754; Zangeri _op. cit._ cap. IV. Nos. 9, 10; Hieron. Magius de Equuleo cum Appendd. Amstelod. 1664, etc. According to Bernhardi, Johann Graefe enumerates no less than six hundred different instruments invented for the purpose. Damhouder (_op. cit._ cap. xxxvii. Nos. 17-23) declares that torture can legally be inflicted only with ropes, and then proceeds to describe a number of ingenious devices. One of these, which he states to produce insufferable torment without risk, is bathing the feet with brine and then setting a goat to lick the soles.

The strappado, or suspension by the arms behind the back with weights to the feet, was the torture in most general use and most favored by legal experts.—Grillandus, _loc. cit._

[1708] Augustin Nicholas, _op. cit._ pp. 169, 178.

[1709] Even this, however, was not deemed necessary in cases of conspiracy and treason “qui fiunt secreto, propter probationis difficultatem devenitur ad torturam sine indiciis”—Emer. a Rosb. Tit. V. cap. x. No. 20.

[1710] Fama frequens et vehemens facit indicium ad torturam (Zanger. c. II. No. 80. Cf. Alberti de Gandino de Quæst. § 39). Reus ante accusationem vel inquisitionem fugiens et citatus contumaciter absens, se suspectum reddit ut torqueri possit (Ibid. No. 91. Cf. Simancæ Cathol. Instit. Tit. LXV. Nos. 28-30). Inconstantia sermonis facit indicium ad torturam (Zanger. Nos. 96-99). Ex taciturnitate oritur indicium ad torturam (Ibid. No. 103). Physiognomia malam naturam arguit, non autem delictum (Ibid. No. 85). How exceedingly lax was the application of these rules may be guessed from a remark of Damhouder’s, that although rumor was sufficient to justify torture, yet a contrary rumor neutralized the first and rendered torture improper.—Damhouder. Rer. Crimin. Praxis cap. xxxv. Nos. 14, 15.

[1711] Deinde a pallore et similibus oritur indicium ad torturam secundum Bartol. (Emer. a Rosbach Tit. V. c. vii. Nos. 28-31). Whereupon von Rosbach enters into a long dissertation as to the causes of paleness.

[1712] Godelmanni de Magis Lib. III. cap. x. § 29.

[1713] Scialojæ cap. iii. Nos. 5, 6.

[1714] Judicis arbitrio relinquitur an indicia sint sufficientia ad torturam (Zanger. cap. II. Nos. 16-20). An indicia sufficiant ad torturam judicis arbitrio relictum est.... Indicia ad torturam sufficientia relinquuntur officio judicis (Emer. a Rosbach Tit. V. c. ii. p. 529). Damhouder, indeed, states that no rules can be framed—“neque ea ullis innituntur regulis: sed universum id negotium geritur penes arbitrium, discretionem ac conscientiam judicis.”—Rer. Crimin. Praxis cap. xxxvi. Nos. 1, 2. Cf. Braune Dissert. de Tortura Valetudin. Halæ Cattor. 1740.

So Grillandus (De Quæstione et Tortura Q. iii.)—“Quæ autem indicia dicantur esse sufficientia ad torturam certa regula tradi non potest, sed hoc relinquitur arbitrio et discretioni boni judicis.”

And Albertus de Gandino (De Quæstionibus § 14)—“Nec de his possit dari certa doctrina sed hoc committitur arbitrio judicantis.”

[1715] Sunt tamen nonnulli prætores et judices sanguine fraterno adeo inexsaturabiles ut illico quemvis malæ famæ virum, citra ulla certa argumenta aut indicia, corripiant ad sævissimam torturam, inclementer dicentes, cruciatum facile ab illis extorturum rerum omnium confessionem.—Damhouder. Rer. Crimin. Praxis cap. xxxv. No. 13.

[1716] Hipp. de Marsiliis Singularia, No. 455 (Venet. 1555).

[1717] Godelmanni de Magis Lib. III. cap. v. § 26.—Emer. a Rosbach Tit. V. c. x. No. 25.

[1718] Groot, Historia Eclesiastica y Civil de Nueva Granada, Bogotá, 1869, T. I. pp. 114-5, 116-20. Cf. Scialojæ Praxis torquendi Reos, cap. i. No. 25.

[1719] Rosbach Tit. V. cap. x. No. 2.

[1720] Ibid. Tit. V. cap. xiv. No. 16.—Goetzii Dissert. de Tortura, p. 54.—Grillandi de Quæst. et Tortura, Q. vii.

[1721] Scialojæ cap. xiv. Nos. 5-20.—Jo. Frid. Werner Dissert. de Tortura Testium, Erford. 1724, pp. 72 sqq.

[1722] Passerini Regulare Tribunal, Quæst. XV. Art. ix. No. 115 (Colon. Agripp. 1665).

[1723] Process. contr. Card. de Caraffa (Hoffman. Collect. Script. I. 632).

[1724] Scialojæ c. xiv. No. 2.

[1725] Statuta Criminalia Communis Bononiæ (Bononiæ 1525, p. 15 _b_).

[1726] Damhouder, _op. cit._ cap. xlvii. No. 3.

[1727] Passerini, _loc. cit._ Nos. 122-3.

[1728] Ibid. No. 118.

[1729] Simancæ de Cathol. Instit. Tit. LXV. No. 73.

[1730] Zangeri, _op. cit._ I. Nos. 8-25.

[1731] Zangeri cap. IV. Nos. 25-30.—Damhouder, _op. cit._ cap. xxxvii. Nos. 15, 16.—Baldi de Periglis de Quæstionibus, cap. i. § 7.—Alberti de Gandino de Quæstionibus § 11.

[1732] Grilland. de Quæstione et Tortura Q. iv. §§ 2-10. “Quod tunc corpus ipsius rei dilaniatur membraque et ossa quodammodo dissolvuntur et evelluntur a corpore.”

[1733] Zangeri, _op. cit._ cap. III. No. 3.

[1734] Process. Criminal. Tit. V. cap. x. No. 7.

We have already seen (p. 514) that in France the accused was not allowed to see the evidence against him; and the same rule was in force in Flanders—“Toutes depositions de tesmoins en causes criminelles demeureront secrètes à l’égard de l’accusé.”—Coutume d’Audenarde, Stile de la Procedure, Art. 10. (Le Grand, Coutumes de Flandre, Cambrai, 1719, p. 103).

[1735] Diss. Inaug. cap. I. § xii.

[1736] Goetzii, _op. cit._ p. 36.

[1737] Zangeri, _op. cit._ cap. III. Nos. 1, 4, 5-43.

[1738] Process. Crim. Tit. V. cap. xi. No. 6.

[1739] Goetzii, _op. cit._ p. 35.

[1740] Zangeri cap. II. Nos. 49-50.—Cum enim confrontatio odiosa sit et species suggestionis, et remedium extraordinarium ad substantiam processus non pertinens, et propterea non necessaria.

[1741] Zangeri, cap. IV. Nos. 1-6.

[1742] Goetzii Dissert. de Tortura, p. 34.

[1743] Braune Dissert. de Tortura Valetudin. p. 16.

[1744] Process. Crimin. Tit. V. cap. ix. No. 10.

[1745] Zangeri cap. I. No. 37.

[1746] Rer. Crimin. Praxis cap. xxxviii. Nos. 6, 7.

[1747] Boden de Usu et Abusu Torturæ Th. XII. Damhouder declares this practice to be unjustifiable, though not infrequent (Rer. Crimin. Praxis cap. xxxvii. No. 12).—Bonifazio de’ Vitaliani speaks of it as a common but evil custom.—De Quæstionibus, Rubr. _Quæ indicia_, § 7.

[1748] He represents the judge as addressing his victim “Tu sei il reo di un delitto, dunque è possibile che lo sii di cent’ altri delitti: questo dubbio mi pesa, voglio accertarmene col mio criterio di verità: le leggi ti tormentano, perche sei reo, perche puoi esser reo, perche voglio che tu sii reo.”—Dei Delitti e delle Pene, § XII.

[1749] Martini Bernhardi Diss. Inaug. de Tortura cap. I. § 4. Scialoja, in 1653, assures us that this torture after confession to prevent appeals was no longer permitted in the Neapolitan courts, and that it was only allowed for the discovery of accomplices (Praxis torquendi Reos. c. i. Nos. 8-10).

[1750] Scialojæ, _op. cit._ cap. i. No. 14.

[1751] Damhouder, Rer. Crimin. Prax. cap. xxxv. No. 9, cap. xxxviii. No. 14.—Werner Dissert. de Tortura Testium, pp. 76 sqq.

[1752] Damhoud. cap. xxxix. No. 6.

[1753] Goetzii Dissert. de Tortura, p. 26.

[1754] Emer. a Rosbach Process. Criminal. Tit. V. cap. x. Nos. 8-16.—Simancæ Cath. Inst. LXV. 17.

[1755] Bernhardi, _loc. cit._ The difference between the practice and principles of the law is shown by the rules laid down in 1647 by Brunnemann, coexisting with the above. He directs that the proceedings are to be exhibited to the accused or his friends, and then submitted to a college of jurists who are to decide as to the necessity of torture, and he warns the latter that they can have no graver question placed before them—“Et sane nullam graviorem puto esse deliberationem in Collegiis Juridicis quam ubi de tortura infligenda agitur.”—Brunneman. de Inquisitionis Processu cap. VIII. Memb. iv. No. 10; Memb. v. No. 1.

[1756] Passerini Regulare Tribunal; Praxis, cap. viii. No. 170.

[1757] Louïse, Sorcellerie et Justice Criminelle à Valenciennes (Valenciennes, 1861, pp. 121-125).

[1758] Goetzii Diss. de Tortura, p. 71.

[1759] Bodin de Magor. Dæmonom. (Basil. 1581, p. 325).

[1760] Zangeri cap. V. Nos. 79-81.

[1761] Bernhardi Diss. Inaug. cap. I. § xi.

[1762] Emer. a Rosbach, _op. cit._ Tit. V. cap. xviii. No. 13.—Godelmanni de Magis L. III. cap. x. § 52.—Gerstlacheri Comment. de Quæst. per Tormenta, p. 35.—Grillandi de Quæst. et Tortura Q. vii. § 11. So Beccaria (Delitt. e Pene, § XII.)—“Alcuni dottori ed alcune nazioni non permettono questa infame petizione di principio che per tre volte; altre nazioni ed altri dottori la lasciano ad arbitrio del giudice.”

[1763] This custom prevailed in Electoral Saxony until the abrogation of torture (Goetzii Diss. de Tort. p. 33), and was especially the case at Amsterdam. Meyer (Institutions Judiciaires, IV. 295) states that the registers there afford scarcely an instance of a prisoner discharged without conviction after enduring torture.

[1764] Zanger. _loc. cit._

[1765] Bernhardi, cap. I. § xii.—Goetzii _op. cit._ p. 74.—Cf. Caroli V. Const. Crim. cap. XX. § 1.—Goetz (p. 67) derives _urpheda_ from _ur_ before, and _fede_ enmity.

[1766] Goetzii Dissert. de Tortura, p. 31.

[1767] Werner. Dissert. de Tortura, pp. 91-2.

[1768] Zangeri cap. II. Nos. 9-10; cap. V. Nos. 19-28.—Damhouder. _op. cit._ cap. xxxvi. No. 36.—Baldi de Periglis de Quæstionibus cap. ii. § 9.

[1769] Zangeri cap. V. Nos. 1-18.—Goetzii Dissert. de Tortura, pp. 67-9.

[1770] Damhouder. _op. cit._ cap. xl. No. 3.—Bigotry and superstition, especially, did not allow their victims to escape so easily. In accusations of sorcery, if appearances were against the prisoner—that is, if he were of evil repute, if he shed no tears during the torture, and if he recovered speedily after each application—he was not to be liberated because no confession could be wrung from him, but was to be kept for at least a year, “squaloribus carceris mancipandus et cruciandus, sæpissime etiam examinandus, præcipue sacratioribus diebus.”—Rickii Defens. Aq. Probæ cap. I. No. 22.

[1771] Alberti de Gandino de Quæstionibus § 21.

[1772] Zangeri cap. V. No. 53-61.—Goetzii Dissert. de Tortura, p. 57.

[1773] Boden, _op. cit._ Th. V. VI.

[1774] Goetzii Dissert. de Tortura, p. 72.

[1775] Boden, _op. cit._ Th. V. VI.

[1776] Goetzii Dissert. de Tortura, p. 76. Distinction was sometimes made between crimes involving death or corporal punishment and those of lighter grade, but Goetz states that in his time (1742) in Saxony the above was the received practice.

[1777] Dissert. Mor. et Jurid. sur la Torture, pp. 36-7.

[1778] Ibid. p. 169.

[1779] Damhoud. Rer. Criminal. Prax. cap. 34, § 7.

[1780] Const. 7 Cod. IX. xviii.

[1781] Concil. Emeritan. ann. 666 can. xv.

In the middle of the thirteenth century, the Emperor Theodore Lascaris invented a novel mode of torture in a case of this kind. When a noble lady of his court was accused of sorcery, he caused her to be inclosed naked in a sack with a number of cats. The suffering, though severe, failed to extort a confession.—Georg. Pachymeri Hist. Mich. Palæol. Lib. I. cap. xii.

[1782] Bodini de Magorum Dæmonoman. Lib. IV. cap. 2.

[1783] Boguet, Discours des Sorciers, chap. lv. (Lyon, 1610).

[1784] Louïse, La Sorcellerie et la Justice Criminelle à Valenciennes (Valenciennes, 1861, pp. 133-64).—For other similar instances see Bodin, _op. cit._ Lib. IV. cap. 1, 2.

[1785] Bodin. Lib. I. cap. 2.

[1786] Per legales testes hujus rei ad convincendum fides certa haberi non potest.—Rickii Defens. Aquæ Probæ cap. III. No. 117.

[1787] Idque facilius in excepto et occulto difficilisque probationis crimine nostro sortilegii admiserim quam in aliis.—Disquisit. Magicar. Lib. V. Sect. iii. No. 8.

[1788] Boguet, Instruction pour un juge en faict de Sorcelerie, art. xxxii.

[1789] Soit pour ne trouver les délitz suffisament vérifiez, ou pour savoir tous les complices, _ou autrement_.—Chart. nouv. du Haynau, chap. 125, art. xxvi. (Louïse, p. 94).

[1790] Nicolas, p. 145. The curious reader will find in Del Rio (Lib. V. Sect. ix.) ample details as to the arts of the Evil One to sustain his followers against the pious efforts of the Inquisition.

[1791] “Qu’après qu’on eut lavé ses jambes, qui avoient été déchirées par la torture, et qu’on les eut présentées au feu pour y rapeller quelque peu d’esprits et de vigueur, il ne cessa pas de s’entretenir avec ses Gardes, par des discours peu sérieux et pleins de railleries; qu’il mangea avec apétit et but avec plaisir trois ou quatre coups; et qu’il ne répandit aucuns larmes en souffrant la question, ni après l’avoir souffert, lors même qu’on l’exorcisa de l’exorcisme des Magiciens, et que l’Exorciste lui dit à plus de cinquante reprises ‘præcipio ut si sis innocens effundas lachrymas.’”—Hist. des Diables de Loudon, pp. 157-8.

[1792] Rerum Crimin. Praxis Cap. xxxvii. Nos. 21, 22. Cf. Brunnemann. de Inquisit. Process. cap. VIII. Memb. v. No. 70.

[1793] Rickii _op. cit._ cap. I. No. 24.

[1794] Grillandi de Quæstione et Tortura, Art. iii. §§ 12-16. One of the conjurations is an allusion to the Crucifixion,

“Imparibus meritis tria pendent corpora ramis. Dismas et Gestas, in medio est divina potestas. Dismas damnatur, Gestas ad astra levatur.”

Another “Quemadmodum lac beatæ gloriosæ Mariæ virginis fuit dulce et suave domino nostro Jesu Christo, ita hæc tortura sit dulcis et suavis brachiis et membris meis.”

[1795] Boguet, Instruction pour un juge, art. xxix.—Damhouderi Rer. Crim. Prax. cap. xxxviii. No. 19.

[1796] Sprenger Mall. Maleficar. P. III. q. xvi. This was directly in contradiction to the precepts of the civil lawyers. Ippolito dei Marsigli says positively that a confession uttered in response to a promise of pardon cannot be used against the accused (Singularia, Venet. 1555, fol. 36 _b_). The Church, however, did not consider itself bound by the ordinary rules of law or morality. Marsigli in another passage (fol. 30 _a_) relates that Alexander III. once secretly promised a bishop that if he would publicly confess himself guilty of simony he should have a dispensation, and on the prelate’s doing so, immediately deposed him.

[1797] Bodin. Lib. IV. cap. I.

[1798] Boguet, Instruction, art. xxvii.

[1799] De Cathol. Instit. Tit. XIII. No. 12.

[1800] Disquisit. Magicar. Lib. V. Sect. x.

[1801] Father Tanner states that he had this from learned and experienced men.—Tanneri Tract. de Proc. adv. Veneficas, Quæst. II. Assert. iii. § 2.

[1802] Ibid. _loc. cit._

[1803] Nicolas, p. 164.

[1804] Chabot, Encyclopédie Monastique, p. 426 (Paris, 1827). For instances see Angeli Rumpheri Hist. Formbach. Lib. II. (Pez, I. III. 446).—A. Molinier in Vaissette, Ed. Privat, IX. 417.

[1805] “Ita torquatur ut nec plagam referat nec color cutis livescat.”—Grágás, Festathattr cap. xxxiii.

[1806] Grágás, Vigslothi cap. cxi.

[1807] Ibid. Vigslothi cap. lxxxviii.

[1808] Schlegel Comment. ad Grágás § xxix.

[1809] Legg. Cimbric. Woldemari Lib. II. cap. i. xl. (Ed. Ancher, Hafniæ, 1783).

[1810] Christiani V. Jur. Danic. Lib. I. cap. xx. (Ed. Weghorst, Hafniæ, 1698). Senckenberg (Corp. Jur. German. T. I. Præf. p. lxxxvi.) gives the chapter heads of a code in Danish, the _Keyser Retenn_, furnished to him by Ancher, in which cap. iv. and v. contain directions as to the administration of torture. The code is a mixture of German, civil, and local law, and probably was in force in some of the Germanic provinces of Denmark.

[1811] Legg. Opstalbomicæ ann. 1323 (_ap._ Gärtner, Saxonum Leges Tres. Lipsiæ, 1730).

[1812] Raguald. Ingermund. Leg. Suecor. Stockholmiæ, 1623.

[1813] Ll. Henrici I. cap. v. § 16.

A curious disregard of this principle occurs in the Welsh laws, which provide that when a thief is at the gallows, with the certainty of being hanged, his testimony as to his accomplices is to be received as sufficient without requiring it to be sworn to on a relic—the inseparable condition of all other evidence. By a singular inconsistency, however, the accomplice thus convicted was not to be hanged, but to be sold as a slave.—Dimetian Code, Bk. II. ch. v. § 9 (Owen I. 425).

[1814] Many interesting details on the influence of the Roman law upon that of England will be found in the learned work of Carl Güterbock, “Bracton and his Relation to the Roman Law,” recently translated by Brinton Coxe (Philadelphia, 1866). The subject is one which well deserves a more thorough consideration than it is likely to receive at the hands of English writers.

It is curious to observe that the _crimen læsæ majestatis_ makes its appearance in Bracton (Lib. III. Tract. ii. cap. 3, § 1) about the middle of the thirteenth century, earlier than in France, where, as we have seen, the first allusion to it occurs in 1315. This was hardly to be expected, when we consider the widely different influences exerted upon the jurisprudence of the two countries by the Roman law.

[1815] The passage which has been relied on by lawyers is chap. xxx.: “Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut aliquo modo destruatur; nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ.” If the law just above quoted from the collection of Henry I. could be supposed to be still in force under John, then this might possibly be imagined to bear some reference to it; but it is evident that had torture been an existing grievance, such as outlawry, seizure, and imprisonment, the barons would have been careful to include it in their enumeration of restrictions. Moreover, Magna Charta was specially directed to curtail the royal prerogative, and at a later period was not held by any one to interfere with that prerogative whenever the king desired to test with the rack the endurance of his loving subjects.

[1816] Et come ascuns felons viendrount en Jugement respondre de lour felonie, volons que ils viegnent dechausses et descients sauns coiffe, et a teste descouverte, en pure lour cote hors de fers et de chescun manere de liens, ïssint que la peine ne lour toille nule manere de rason, selon par force ne lour estouva mye respondre forsque lour fraunche volunte.—Britton, chap. v.

[1817] Per volunté aussi se fait ceste pesché [homicide] si come per ceux qui painent home tant que il est gehist pur avouer pesché mortelment.—Horne, The Myrror of Justice, cap. I. sect. viii.—See also Fleta, Lib. I. cap. xxvi. § 5.

[1818] Ou faussement judgea Raginald ... ou issint; tant luy penia pur luy faire conoistre, approver il se conoist faussement aver pesché ou nient ne pescha.—Horne, cap. II. sect. xv.

[1819] Pike (Hist. of Crime in England I. 427) quotes a document of 1189 which seems indirectly to show that torture could be inflicted under an order of the king. The expression is somewhat doubtful, and as torture had not yet established itself anywhere in Europe as a judicial procedure the document alleged can hardly be received as evidence of its legality.

[1820] See Fortescue de Laud. Legg. Angliæ. cap. xxxiii.—The jealousy with which all attempted encroachments of the Roman law were repelled is manifested in a declaration of Parliament in 1388. “Que ce royalme d’Engleterre n’estait devant ces heures, ne à l’entent du roy nostre dit seignior et seigniors du parlement unque ne serra rulé ne governé par la ley civill.”—Rot. Parl., II Ric. II. (Selden’s Note to Fortescue, _loc. cit._).

[1821] De Laudibus Legum Angliæ, cap. xxii.

[1822] See Jardine’s “Reading on the Use of Torture in the Criminal Law of England,” p. 7 (London, 1837), a condensed and sufficiently complete account of the subject under the Tudors and Stuarts.

[1823] Partim tormentis subjecti, partim crudelissime laniati, et

## partim etiam furca suspensi fuerant.—Wilkins Concil. III. 617.

[1824] Jardine, _op. cit._ pp. 8-9, 24-5. It is due to Sir Thomas to add that he earnestly begs Lord Burghley to release him from so uncongenial an employment.

[1825] Ibid. pp. 8, 47.

[1826] Bacon’s Works, Philadelphia, 1846, III. 126.

[1827] Strype’s Eccles. Memorials, III. 101.

[1828] Burnet, Hist. Reform. Bk. III. pp. 341-2.

[1829] According to Nicander Nucius (Travels, Camden Soc. 1841, pp. 58, 62), the investigation of these deceptions with the severest tortures, Βασάνοις ἀφορήτοις, was apparently the ordinary mode of procedure.

[1830] Diarium rerum gestarum in Turri Londinensi (Sanderi Schisma Anglicanum, _ad calcem_, Ingolstadt, 1586).

[1831] Sir William Skevington, a lieutenant of the Tower, under Henry VIII., immortalized himself by reviving an old implement of torture, consisting of an iron hoop, in which the prisoner was bent, heels to hams and chest to knees, and was thus crushed together unmercifully. It obtained the nickname of Skevington’s Daughter, corrupted in time to Scavenger’s Daughter. Among other sufferers from its embraces was an unlucky Irishman, named Myagh, whose plaint, engraved on the walls of his dungeon, is still among the curiosities of the Tower:—

“Thomas Miagh, which liethe here alone, That fayne wold from hens begon: By torture straunge mi truth was tryed, Yet of my libertie denied. 1581. Thomas Myagh.” (Jardine, _op. cit._ pp. 15, 30).

[1832] Jardine, pp. 53, 57-8.

It is rather remarkable to find torture legalized at this period, even in qualified form of the _question définitive_ in the Colony of Massachusetts. The Body of Liberties, enacted in 1641, declares:—

“45. No man shall be forced by Torture to confesse any crime against himselfe nor any other, unlesse it be in some Capitall case where he is first fully convicted by cleare and suffitient evidence to be guilty, After which if the case be of that nature, That it is very apparent there be other conspiritours or confederates with him, Then he may be tortured, yet not with such Tortures as be Barbarous and inhumane.”—Whitmore’s Colonial Laws of Massachusetts, Boston, 1889 (N. Y. Nation, No. 1268, p. 318).

From this it would appear safe to conclude that this is a limitation on a pre-existing, more general use of torture.

[1833] Jardine, p. 65.

[1834] Lecky, Hist. of Rationalism, Am. ed. I. 122.—In his very interesting work, Mr. Lecky mentions a case, occurring under the Commonwealth, of an aged clergyman named Lowes, who, after an irreproachable pastorate of fifty years, fell under suspicion. “The unhappy old man was kept awake for several successive nights, and persecuted ‘till he was weary of his life, and was scarcely sensible of what he said or did.’ He was then thrown into the water, condemned, and hung.”—Ibid. p. 126.

[1835] Cobbett’s State Trials, VI. 686.—Although ostensibly not used to extort confession, this pricking was practically regarded as a torture. Thus in 1677 the Privy Council of Scotland “found that they (_i. e._, the inferior magistracy) might not use any torture by pricking or by withholding them from sleep” (_loc. cit._).

[1836] Spottiswoode Miscellany, Edinburgh, 1845, II. 67.

[1837] Rogers’s Scotland, Social and Domestic, p. 266.

[1838] Statut. Roberti III. cap. xvi. (Skene).

[1839] Lecky, _op. cit._ I. 145-6.—Rogers, _op. cit._ pp. 267-300.

[1840] I quote from Mr. Lecky (p. 147), who gives as his authority “Pitcairn’s Criminal Trials of Scotland.”

“But others and perhaps worse trials were in reserve. The three principal that were habitually applied were the penniwinkis, the boots, and the caschielawis. The first was a kind of thumbscrew; the second was a frame in which the leg was inserted, and in which it was broken by wedges driven in by a hammer; the third was also an iron frame for the leg, which was from time to time heated over a brazier. Fire matches were sometimes applied to the body of the victim. We read, in a contemporary legal register, of one man who was kept for forty-eight hours in ‘vehement tortour’ in the caschielawis; and of another who remained in the same frightful machine for eleven days and eleven nights, whose legs were broken daily for fourteen days in the boots, and who was so scourged that the whole skin was torn from his body.” These cases occurred in 1596.

These horrors are almost equalled by those of another trial in which a Dr. Fian was accused of having caused the storms which endangered the voyage of James VI. from Denmark in 1590. James personally superintended the torturing of the unhappy wretch, and after exhausting all the torments known to the skill and experience of the executioners, he invented new ones. All were vain, however, and the victim was finally burnt without confessing his ill-deeds (Ibid. p. 123).

[1841] Rogers, _op. cit._ p. 307.

[1842] Diurnal of Occurrences in Scotland (Spottiswoode Miscellany, II. 90-91).

[1843] 7 Anne c. 21.—While thus legislating for the enlightenment of Scotland, the English majority took care to retain the equally barbarous practice of the _peine forte et dure_. This was commenced in 1275 simply as a “prisone forte et dure” (First Statute of Westminster, cap. xii.; Cf. Britton, cap. xi.) for felons refusing to plead, and speedily developed into starvation and nakedness (Fleta, Lib. I. cap. xxxii. § 33). Horne (Myrror of Justice, cap. I. § viii.; cap. II. § ix.) evidently regards as illegal “le horrible et perillous lien,” and treats as murder a death occasioned by it. In spite of this protest the process was rendered still more barbarous by piling weights of iron on the poor wretch, and finally the device of a press was adopted in which he was squeezed. In this shape it lost its original justification of wearing out his endurance and forcing him to plead either guilty or not guilty, and became a simple punishment of peculiar atrocity, for, after its commencement the prisoner was not allowed to plead, but was kept under the press until death, “donec oneris, frigoris atque famis cruciatu extinguitur” (Hale, Placit. Coron. c. xliii.). This relic of modern barbarism was not abolished until 1772, by 12 Geo. III. c. 20. The only case of its employment in America is said to have been that of Giles Cory, in 1692, during the witchcraft epidemic. Knowing the hopelessness of the trials, he refused to plead, and was duly pressed to death (Cobbett’s State Trials, VI. 680).

When the _peine forte et dure_ had become simply a punishment, it was sometimes replaced by a torture consisting of tying the thumbs together with whipcord until the endurance of the accused gave way and he consented to plead. This practice continued at least until so late as 1734. See an interesting essay by Prof. James B. Thayer, Harvard Law Review, Jan. 1892.

[1844] Rogers, _op. cit._ p. 301.

[1845] Herzog, Abriss der Gesammten Kirchengeschichte, II. 346.

[1846] His arguments are quoted and controverted by Simancas, Bishop of Badajos, in his Cathol. Institut. Tit. LXV. No. 7, 8.

[1847] Essais, Liv. II. chap. v.—This passage is little more than a plagiarism on St. Augustin, de Civ. Dei Lib. XIX. cap. vi.—Montaigne further illustrates his position by a story from Froissart (Liv. IV. ch. lviii.), who relates that an old woman complained to Bajazet that a soldier had foraged on her. The Turk summarily disposed of the soldier’s denial by causing his stomach to be opened. He proved guilty—but what had he been found innocent?

[1848] Bayle, Dict. Hist. s. v. _Grevius_.—Gerstlacheri Comment. de Quæst. per Torment. Francof. 1753, pp. 25-6.

[1849] Frid. Kelleri Paradoxon de Tortura in Christ. Repub. non exercenda. Reimp. Jenæ, 1688.

[1850] Déclaration du 24 Août, 1780 (Isambert, XXVII. 374).

[1851] Nicolas is careful to assert his entire belief in the existence of sorcery and his sincere desire for its punishment, and he is indignant at the popular feeling which stigmatized those who wished for a reform in procedure as “avocats des sorciers.”

[1852] Dict. Histor. s. v. _Grevius_.

[1853] Bernhardi Diss. Inaug. cap. II. §§ iv. x.—Bernhardi ventured on the use of very decided language in denunciation of the system.—“Injustam, iniquam, fallacem, insignium malorum promotricem, et denique omni divini testimonii specie destitutam esse hanc violentam torturam et proinde ex foris Christianorum rejiciendam intrepide assero” (Ibid. cap. I. § 1).

[1854] Meyer, Institutions Judiciaires, IV. 297. Even, then, however, the inquisitorial process was not abolished, and criminal procedure continued to be secret. For the rack and strappado were substituted prolonged imprisonment and other expedients to extort confession; and in 1803 direct torture was used in the case of Hendrik Janssen, executed in Amsterdam on the strength of a confession extracted from him with the aid of a bull’s pizzle.

[1855] An enumeration of the opponents of torture may be found in Gerstlacher’s Comment. de Quæst. per Tormenta, pp. 24-30, and Werner’s Dissert. de Tortura Testium, pp. 28-31.

[1856] M. A. Engel de Tortura ex Foris Christ. non proscribenda. Lipsiæ, 1733.

[1857] Jo. Frid. Werner Dissert. de Tortura Testium, Erford. 1724. Reimpr. Lipsiæ, 1742.

[1858] Carlyle, Hist. Friedrich II. Book XI. ch. i.

[1859] I find this statement in an account by G. F. Günther (Lipsiæ, 1838) of the abolition of torture in Saxony.

[1860] Günther, _op. cit._

[1861] Gerstlacheri Comment. de Quæst. per Tormenta, Francofurti, 1753, p. 56.

[1862] Goetzii Dissert. de Tortura, Lipsiæ, 1742, p. 24.

[1863] Constitutio Criminalis Theresiana, Wien, 1769.

[1864] Du Boys, Droit Criminel des Peuples Modernes, I. 620.

[1865] Instructions addressées par sa Majesté l’Impératrice de toutes les Russies à la Commission établie pour travailler à l’exécution du projet d’un Nouveau Code de Lois Art. X. §§ 82-87 (Pétersbourg 1769).—See also Grand Instructions of Catherine II., London, 1769, pp. 113-8.

[1866] Jardine, Use of Torture in England, p. 3.—Meyer, Institutions Judiciaires, T. I. p. xlvi.—T. II. p. 262.

[1867] Groot, Hist. Ecles. y Civil de Nueva Granada II. 79-80.

[1868] Toreno, Levantamiento, Guerra y Revolución de España, Paris, 1838, II. 371, 438.

[1869] Tant d’habiles gens et tant de beaux génies ont écrit contre cette pratique que je n’ose parler après eux. J’allois dire qu’elle pourroit convenir dans les gouvernements despotiques; où tout qui inspire la crainte entre plus dans les ressorts du gouvernement: j’allois dire que les esclaves, chez les Grecs et chez les Romains—— Mais j’entends la voix de la nature qui crie contre moi.—Liv. VI. ch. xvii.

[1870] Desmaze, Pénalités Anciennes, Pièces Justicatives p. 423.

[1871] Mary Lafon, Histoire du Midi de la France, T. IV. pp. 325-355.—The theory of the defence was that the murdered man had committed suicide; but this is incompatible with the testimony, much of which is given at length by Mary Lafon, a writer who cannot be accused of any leanings against Protestantism.

[1872] Chéruel, Dict. Hist. des Institutions de la France. P. II. p. 1220.

[1873] Déclaration du 24 Août 1780 (Isambert, XXVII. 373).

[1874] Desmaze, Pénalités Anciennes, pp. 176-77.

[1875] Déclaration du 3 Mai 1788, art. 8. “Nôtre déclaration du 24 Août sera exécutée” (Isambert, XXIX. 532).

[1876] Louīse, Sorcellerie et Justice Criminelle à Valenciennes, p. 96.

[1877] Isambert, XXIX. 529.—It is noteworthy, as a sign of the temper of the times, on the eve of the last convocation of the Notables, that this edict, which introduced various ameliorations in criminal procedure, and promised a more thorough reform, invites from the community at large suggestions on the subject, in order that the reform may embody the results of public opinion—“Nous élèverons ainsi au rang des lois les résultats de l’opinion publique.” This was pure democratic republicanism in an irregular form.

The edict also indicates an intention to remove another of the blots on the criminal procedure of the age, in a vague promise to allow the prisoner the privilege of counsel.

[1878] Dei Delitti e delle Pene, § XII.—The fundamental error in the prevalent system of criminal procedure was well exposed in Beccaria’s remark that a mathematician would be better than a legist for the solution of the essential problem in criminal trials—“Data la forza dei muscoli e la sensibilitá delle fibre di un innocente, trovare il grado di dolore che lo farà confessar reo di un dato delitto.”

[1879] Carlo di la Varenne, La Tortura in Sicilia, 1860.

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Transcriber’s note:

Obvious typographical errors have been silently corrected.

Variations in hyphenation have been standardised but all other spelling and punctuation remains unchanged.