Superstition and force

Front matter

JL^

Gins'; . G f bldO Book ,L±^

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Preface

The history of jurisprudence is the history of civilization. The labors of the lawgiver embody not only the manners and customs of his time, but also its innermost thoughts and beliefs, laid bare for our examination with a frankness that admits of no concealment. These afford the surest outlines for a trustworthy picture of the past, of which the details are supplied by the records of the chronicler.

It is from these sources that I have attempted, in the present work, a brief investigation into the group of laws and customs through which our forefathers sought to discover hidden truth when disputed between man and man. Not only do these throw light upon the progress of human development from primitive savagism to civilized enlightenment, but they reveal to us some of the strangest mysteries of the human mind.

In this edition I have endeavored to indicate, mofe clearly than before, the source, in prehistoric antiquity, of

IV PREFACE.

some of the superstitions which are only even now slowly dying out among us, and which ever and anon reassert themselves under the thin varnish of our modern rationalism.

In a greatly condensed form the first three essays originally appeared in the North American Review.

Philadelphia, June, 1878.

I. The Wager Of Law

PAGE

Social Organization of the Aryan Races.

Crime merely an offence against individuals . . . • ^3

Tribal organization — Responsibility of kindred ... 14

Compensation for injuries — The Wer-gild . . . .16

The Oath and its Accessories.

Perplexities as to evidence ....... 20

Guarantees required for the oath . . . . . .21

CONJURATORS, OR PARTAKERS IN THE OaTH.

The Wager of Law a prehistoric Aryan custom . . .31

It is adopted by the Church ....... 33

Selection of Compurgators.

They are originally the kindred ...... 35

Strangers admitted ........ 37

Numbers required ........ 40

Modes of selection ........ 44

Conditions of Compurgation.

Employed in default of testimony 48

Except in Wales . . . . . . . . .51

Dependent on importance of case . . . . . • S^

Formulas and Procedure.

Forms of compurgatorial oath ...... 53

Modes of administration . . . . . • • 55

Qualified confidence reposed in compurgation . . • 56

Conjurators liable to ptnaliies of perjury .... 58

1*

VI CONTENTS.

PAGE

Decline of Compurgation.

Early efforts to limit or abolish it . . . . . .61

The oath no longer a positive asseveration .... 66

Influence of revival of Roman Lav/ . . . . .67

Conservatism of Feudalism . . . . . . .71

Gradual disappearance of Compurgation in Continental Europe 73 Preserved in England until 1833 . . . . . . 78

Maintained in the Church and in the Inquisition . . .81

Accusatorial Conjurators.

Employed by the Barbarians ...... 86

Maintained until the sixteenth century ..... 90

II. The Wager Of Battle

Natural tendency to appeal to Heaven ...... 93

Distinction between the Judicial Combat and the Duel ... 95

Origin of the Judicial Combat.

A prehistoric Aryan custom ..... . . 99

Extension of Use of the Judicial Combat.

Its form Christianized into an appeal to God .... 108

Universality of its employment . . . . . .109

Practice of challenging vi^itnesses . . , . . .111

of challenging judges . . . . . .113

Confidence reposed in the Judicial Combat.

Its jurisdiction universal . . . . . . . i r8

Implicit faith reposed in it . . . . . . .126

Limitations imposed on the Judicial Combat.

Respective rights of plaintiff and defendant . . . .128

Minimum limit of value . . . . . . • ^33

Questions of rank . . . . . . . '135

Liability of women to the combat . . . . . .138

of ecclesiastics . . . . . . .140

The combat under ecclesiastical jurisdiction .... 144

Not recognized in mercantile law . . . , . .147

CONTENTS.

Regulations of the Judicial Combat.

Penalty for defeat Security required of combatants Choice of weapons

Champions.

Originally kinsmen ....

Employment of champions becomes general Hired champions were originally witnesses Punishment for defeated champions Professional champions Efforts to limit the use of champions Champions of communities . of the Church

Decline of the Judicial Combat.

Iceland and Norway the first to prohibit it Opposition of the Municipalities .

of the Church ....

Influence of the Roman Law Struggle over its abolition in France

Reforms of St. Louis ....

Resistance of the Feudatories

Reaction after the death of St. Louis

Renewed efforts of Philippe-le-Bel

Continued by his successors .

Occasional cases in fifteenth and sixteenth centuries

Final disappearance ......

Its later history in Hungary, Italy, Flanders, Russia, Scotland Maintained in England until the nineteenth century Traces of its legal existence in the United States .

155 156

176 177

III. The Ordeal

Tendency of the human mind to cast its doubts on God China an exception ......

The Ordeal in Africa ......

in the Indian and Pacific Archipelagos among pre-Aryan Indian Tribes .

219 221

224 225

Vlll

CONTENTS.

Traces of the Ordeal in Egypt . . . . . . .226

Among Semitic Races — The Assyrians, Hebrews, Moslem . . 227

Among Aryans — Mazdeism ........ 232

Hinduism — Buddhism ........ 234

Hellenes and Italiotes ........ 236

Celts, Teutons, Slavs ........ 238

The Ordeal in the Barbarian occupation of Europe . . . 241

Adopted by the Church ........ 242

Ordeal of Boiling Water.

Details of its administration ....

Miracles reversing the ordinary process .

Ordeal of Red-hot Iron.

Various forms of its administration Specially used in cases of importance

and in cases of disputed paternity Examples of its use .....

Miracles reversing the ordinary process .

Ordeal of Fire.

Its prototypes ......

Cases of its use ......

Used to test relics ......

Ordeal of Cold Water.

Requires a miracle for conviction .

Mode of administration ' Supposed origin in ninth century .

Received in general use . ...

Prolonged employment in witchcraft cases Occasionally used in nineteenth century .

Ordeal of the Balance.

Modes of administration

Ordeal of the Cross.

It is one of endurance .

Variations in procedure

The Corsn^d.

Formula of employment Cases of its use .

244 250

252 256

259 260 265

266 267 277

279 280 282 283 286 293

296 297

299 3^1

CONTENTS. IX

PAGE

The Eucharist as an Ordeal.

Superstitions connected with the Eucharist .... 304

Cases of its use as an ordeal ....... 307

Still used in seventeenth century . . . . . .311

Ordeal of the Lot.

Various modes of its administration . . . . .311

Appeals to chance — Ordeal of Bible and key - . . .314

Bier-Right.

Doubtful origin . . . . . . . . '3^5

Cases of its use . . . , . . . . .316

It lingers to the present day ....... '322

Oaths as Ordeals.

Superstitions connected with the oath . . . . -323 Risks of perjury in oaths on relics ..... 323

Poison Ordeals.

Used in India, not in Europe ...... 327

Irregular Ordeals.

Iron bands on murderers . . . . . . .329

Cases of miraculous interposition ...... 330

Conditions of the Ordeal.

It is a regular judicial procedure ...... 333

Absence of testimony usually a prerequisite .... 335

Usually a means of defence . . . . . . '337

Used in default of compurgation ...... 338

Sometimes regarded as a punishment . . . . . 339

Its use in extorting confessions ...... 342

Practically amounts to torture ...... 343

Confidence reposed in the Ordeal.

Compounding for the ordeal ....... 347

Conflicting views as to its efficacy ...... 348

Explanations of its unjust results . . . . . - 3SO

Regulations to enforce its impartial administration . . . 353

The Church and the Ordeal.

The Papacy consistently opposes it . . . . -355

But it is sustained by the clergy . . . . . • 355

Advantages derived from it by the clergy . . . -359

The Popes at length undertake its abolition .... 363

CONTENTS.

Repressive Secular Legislation.

Forbidden in England in 1 2 19 Gradually falls into desuetude Influence of Roman Law and of the communes Persistence of suoerstition ....

PAGE

364 368