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Superstition and Force Essays on The Wager of Law—The Wager of Battle—The Ordeal—Torture

Superstition and Force
Essays on The Wager of Law—The Wager of Battle—The Ordeal—Torture
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Title: Superstition and Force Essays on The Wager of Law—The Wager of Battle—The Ordeal—Torture
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The Project Gutenberg eBook, Superstition and Force, by Henry Charles Lea

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Title: Superstition and Force

Essays on The Wager of Law--The Wager of Battle--The Ordeal--Torture

Author: Henry Charles Lea

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Language: English

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SUPERSTITION AND FORCE.

ESSAYS ON
THE WAGER OF LAW—THE WAGER OF BATTLE—THEORDEAL—TORTURE.

BY
HENRY CHARLES LEA, LL.D.

Plurima est et in omni jure civili, et in pontificum libris, et in XII. tabulis,antiquitatis effigies.—Cicero, de Oratore I. 43.

FOURTH EDITION, REVISED.

PHILADELPHIA:
LEA BROTHERS & CO.
1892.


Entered according to Act of Congress in the year 1892, by
HENRY C. LEA,
in the Office of the Librarian of Congress. All rights reserved.

COLLINS PRINTING HOUSE.


v

PREFACE.

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

It is from these sources that I have attempted, in thepresent work, a brief investigation into the group of lawsand customs through which our forefathers sought to discoverhidden truth when disputed between man and man.Not only do these throw light upon the progress ofhuman development from primitive savagism to civilizedenlightenment, but they bring into view some of thestrangest mysteries of the human mind.

In this edition I have endeavored to indicate, moreclearly than before, the source, in prehistoric antiquity,of some of the superstitions which are only even nowslowly dying out among us, and which ever and anonvireassert themselves under the thin varnish of our modernrationalism.

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

June, 1878.


Although in the revision of this volume for a fourthedition there has not been found much to alter, considerableadditions have been made which render thesurvey of the subject more complete. In revising theessays on the Wager of Battle and the Ordeal I havehad the advantage of the labors of two recent writers,Dr. Patetta, whose “Le Ordalie” is an extended andphilosophical investigation into the whole topic of theJudgments of God, and George Neilson, Esq., whose“Trial by Combat” is a complete account, from theoriginal sources, of the history of the judicial duel inGreat Britain. Mr. Neilson has also had the courtesyto communicate to me the results of his further studiesof the subject. I therefore indulge the hope that thepresent edition will be found more worthy of the favorwith which the work has been received.

Philadelphia, October, 1892.


vii

CONTENTS.

I.
THE WAGER OF LAW.
CHAPTER I.
RESPONSIBILITY OF THE KINDRED.
PAGE
Crime originally an offence against individuals 13
Tribal organization—Responsibility of kindred 14
Compensation for injuries—The Wer-gild 17
CHAPTER II.
THE OATH AND ITS ACCESSORIES.
Perplexities as to evidence 21
Guarantees required for the oath 25
CHAPTER III.
CONJURATORS, OR PARTAKERS IN THE OATH.
The Wager of Law a prehistoric Aryan custom 33
It is adopted by the Church 35
CHAPTER IV.
SELECTION OF COMPURGATORS.
They are originally the kindred 38
Strangers admitted 41
Numbers required 43
Modes of selection 47viii
CHAPTER V.
CONDITIONS OF COMPURGATION.
Employed in default of testimony 52
Except in Wales 54
Dependent on importance of case 56
As an alternative for the Wager of Battle 57
CHAPTER VI.
FORMULAS AND PROCEDURE.
Forms of compurgatorial oath 58
Modes of administration 60
Qualified confidence reposed in Compurgation 61
Conjurators liable to penalties of perjury 63
CHAPTER VII.
DECLINE OF COMPURGATION.
Early efforts to limit or abolish it 67
The oath no longer a positive asseveration 71
Influence of revival of Roman law 73
Conservatism of Feudalism 76
Gradual disappearance of Compurgation in Continental Europe 78
Preserved in England until 1833 84
Traces in the British colonies 87
Maintained in the Church and in the Inquisition 88
CHAPTER VIII.
ACCUSATORIAL CONJURATORS.
Employed by the Barbarians 94
Maintained until the sixteenth century 98
II.
THE WAGER OF BATTLE.
CHAPTER I.
Natural tendency to appeal to Heaven 101
Distinction between the Judicial Combat and the Duel 103ix
CHAPTER II.
ORIGIN OF THE JUDICIAL COMBAT.
A prehistoric Aryan custom 107
CHAPTER III.
UNIVERSAL USE OF THE JUDICIAL COMBAT.
Its form Christianized into an appeal to God 117
Causes of its general employment 118
Practice of challenging witnesses 120
of challenging judges 123
CHAPTER IV.
CONFIDENCE REPOSED IN THE JUDICIAL DUEL.
Its jurisdiction universal 127
Implicit faith reposed in it 135
CHAPTER V.
LIMITATIONS IMPOSED ON THE WAGER OF BATTLE.
Respective rights of plaintiff and defendant 140
Minimum limit of value 147
Questions of rank 148
Liability of women to the Combat 152
of ecclesiastics 155
The Combat under ecclesiastical jurisdiction 161
Not recognized in mercantile law 165
CHAPTER VI.
REGULATIONS OF THE JUDICIAL COMBAT.
Penalty for defeat 166
Lex talionis 169
Security required of combatants 173
Penalty for default 174
Choice of weapons 176
CHAPTER VII.
CHAMPIONS.
Originally kinsmen 179
Employment of champions becomes general 180x
Hired champions were originally witnesses 182
Punishment for defeated champions 184
Professional champions—their disabilities 186
Efforts to limit the use of champions 189
Champions of communities 196
of the Church 197
CHAPTER VIII.
DECLINE OF THE JUDICIAL COMBAT.
Iceland and Norway the first to prohibit it 199
Opposition of the Municipalities 200
of the Church 206
Influence of the Roman law 211
Decline of the Judicial Duel in Spain 214
Struggle over its abolition in France 216
Reforms of St. Louis 217
Resistance of the Feudatories 218
Reaction after the death of St. Louis 222
Renewed efforts of Philippe le Bel 222
Continued by his successors 227
Occasional cases in fourteenth, fifteenth, and sixteenth centuries 228
Final disappearance 235
Its later history in Italy, Hungary, Flanders, Russia, Scotland 235
Maintained in England until the nineteenth century 241
Traces of its legal existence in the United States 246
III.
THE ORDEAL.
CHAPTER I.
UNIVERSAL INVOCATION OF THE JUDGMENT OF GOD.
Tendency of the human mind to cast its doubts on God 249
China an exception 251
The Ordeal in Japan 253
in Africa 254
in the Indian and Pacific Archipelagoes 257
among pre-Aryan Indian Tribes 258
Traces of the Ordeal in Egypt 259xi
Among Semitic Races—The Assyrians, Hebrews, Moslem 260
Among Aryans—Mazdeism 265
Hinduism—Buddhism 267
Hellenes and Italiotes 269
Celts, Teutons, Slavs 272
The Ordeal in the Barbarian occupation of Europe 275
Adopted by the Church 276
CHAPTER II.
ORDEAL OF BOILING WATER.
Details of its administration 278
Miracles reversing the ordinary process 285
CHAPTER III.
ORDEAL OF RED-HOT IRON.
Various forms of its administration 286
Examples of its use 291
Miracles reversing the ordinary process 301
CHAPTER IV.
ORDEAL OF FIRE.
Its prototypes 303
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