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Title: Superstition and Force

Author: Henry Charles Lea

Release date: January 22, 2019 [eBook #58750]

Language: English

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SUPERSTITION AND FORCE.

ESSAYS ON
THE WAGER OF LAW—THE WAGER OF BATTLE—THE ORDEAL—
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.

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
bring into view some of the strangest mysteries of the human mind.
In this edition I have endeavored to indicate, more clearly than before,
the source, in prehistoric antiquity, of 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.
June, 1878.

Although in the revision of this volume for a fourth edition there has not
been found much to alter, considerable additions have been made which
render the survey of the subject more complete. In revising the essays on
the Wager of Battle and the Ordeal I have had the advantage of the labors of
two recent writers, Dr. Patetta, whose “Le Ordalie” is an extended and
philosophical investigation into the whole topic of the Judgments of God,
and George Neilson, Esq., whose “Trial by Combat” is a complete account,

from the original sources, of the history of the judicial duel in Great Britain.
Mr. Neilson has also had the courtesy to communicate to me the results of
his further studies of the subject. I therefore indulge the hope that the
present edition will be found more worthy of the favor with which the work
has been received.
Philadelphia, October, 1892.

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 47
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 103
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 180
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 259
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
Examples of its use 305
Used to test relics 314
CHAPTER V.
ORDEAL OF COLD WATER.
Mode of administration 318
Supposed origin in ninth century 320
Received in general use 322
Prolonged employment in witchcraft cases 325
Occasionally used in nineteenth century 332
CHAPTER VI.
ORDEAL OF THE BALANCE.
Modes of administration 334
CHAPTER VII.
ORDEAL OF THE CROSS.
It is one of endurance 336
Its limited use and disappearance 338
CHAPTER VIII.
THE CORSNÆD.
Formula of employment 339
Examples of its use 341
CHAPTER IX.
THE EUCHARIST AS AN ORDEAL.
Superstitions connected with the Eucharist 344
Examples of its use as an ordeal 347
Still used in the seventeenth century 351
CHAPTER X.
ORDEAL OF THE LOT.
Various modes of its administration 352

Appeals to chance—Ordeal of Bible and key 356
Sieve-driving 358
CHAPTER XI.
BIER-RIGHT.
Doubtful origin 359
Examples of its use 361
It lingers to the present day 367
Attempts to explain it 368
Weight ascribed to it 369
CHAPTER XII.
OATHS AS ORDEALS.
Superstitions connected with the oath 371
Risks of perjury in oaths on relics 372
CHAPTER XIII.
POISON ORDEALS.
Used in India, not in Europe 375
CHAPTER XIV.
IRREGULAR ORDEALS.
Iron bands on murderers 377
Examples of miraculous interposition 379
CHAPTER XV.
CONDITIONS OF THE ORDEAL.
It is a regular judicial procedure 383
Compounding for ordeals 383
Ordeal for defeated accuser 385
Absence of testimony usually a prerequisite 386
Usually a means of defence 389
Used in failure of compurgation 390
Sometimes regarded as a punishment 391
Its use in extorting confessions 394
Practically amounts to torture 395
Influence of imagination 396
Champions in ordeals 398
CHAPTER XVI.
CONFIDENCE REPOSED IN THE ORDEAL.
Conflicting views as to its efficacy 399
Explanations of its unjust results 401
Regulations to enforce its impartial administration 404
Usually results in acquittal 406
Use of magic arts 407
CHAPTER XVII.
THE CHURCH AND THE ORDEAL.
Complex relations of the Church to the ordeal 408
Occasional opposition of the papacy 409

But it is sustained by the clergy 409
Its use in trials of heretics 410
Impressiveness of its ritual 413
Reasons of papal opposition 414
Advantages derived from it by the clergy 415
The popes at length accomplish its abolition 417
CHAPTER XVIII.
REPRESSIVE SECULAR LEGISLATION.
Forbidden in England in 1219 420
Gradually falls into desuetude 422
Persistence of superstition 427
IV.
TORTURE.
CHAPTER I.
TORTURE IN EGYPT AND ASIA.
The ordeal and torture are substitutes for each other 429
Torture in Egypt—in Assyria—not used by Hebrews 430
Not used by Oriental Aryans 431
Not used in China—used in Japan 431
CHAPTER II.
GREECE AND ROME.
Usages of torture in Greece 432
Rome—freemen not liable under Republic 434
Cæsarism extends the use of torture 435
Limited by Inscription and the Lex Talionis 439
Torture of witnesses 440
Liability of slaves to torture 441
Limitations on use of torture 444
Value of evidence under torture 446
CHAPTER III.
THE BARBARIANS.
Structure of Barbarian society 449
Freemen originally not liable—torture of slaves 451
Illegal torture of freemen by the Merovingians 454
CHAPTER IV.
THE GOTHS AND SPAIN.
Influence of Roman institutions on the Goths 456
Torture under the Ostrogoths 457
Employed by the Wisigoths—details of its use 458
Transmitted by them to modern Spain 461
Legislation of Las Siete Partidas 462
Final shape of torture system in Castile 466
CHAPTER V.

CARLOVINGIAN AND FEUDAL LAW.
Torture first used for witchcraft, under Charlemagne 469
The Church averse to it 471
Character of institutions adverse to its use 471
Feudalism not favorable to it 472
Torture used for punishment and extortion 473
Ecclesiastical influence adverse to its use 477
CHAPTER VI.
REAPPEARANCE OF TORTURE.
Influence of the Roman law 479
Torture first appears in Latin kingdom of Jerusalem 480
It is revived in Italy in the thirteenth century 481
Influence of the Inquisition 483
First appearance of torture in France, in 1254 487
Its gradual introduction—1283 to 1319 491
Resistance of the nobles in 1315 494
Permanently established in opposition to Feudalism 497
Examples of procedure in the Châtelet of Paris, 1389-1392 500
Introduction in Germany 505
in Italy 506
in Hungary—Poland—Russia 508
in the ecclesiastical courts 510
CHAPTER VII.
THE INQUISITORIAL PROCESS.
Secret proceedings and denial of opportunity for defence 512
Perfected by Francis I. 514
Revised under Louis XIV. 517
Torture avec réserve des preuves 518
Illegal extension of the system in the Netherlands 521
Germany—the Caroline Constitutions 522
CHAPTER VIII.
FINAL SHAPE OF THE TORTURE SYSTEM.
The Roman Law engrafted on German Jurisprudence 524
Theoretical exemptions practically annulled 525
Limitations disregarded in practice 527
Influence of the system on the judge 534
Arbitrary abuses 539
Torture of witnesses 541
Grades of torture 543
Denial of opportunities for defence 544
Confirmation of confession necessary 548
Inconsistencies in the torture system 550
Influence of witch-trials in aggravating the torture system 553
Use of charms to produce insensibility 556
Deceit used in failure of torture 558

Torture in monasteries 560
CHAPTER IX.
ENGLAND AND THE NORTHERN RACES.
Early use of torture in Iceland 561
Influence of the jury-trial in delaying introduction of Torture in Denmark, Norway, and
Sweden 562
England—Torture unknown to the Common Law 563
Introduced as a concession to the royal prerogative 566
Influence of witch-trials 570
Scotland—frightful severity of torture trials 572
CHAPTER X.
DECLINE OF THE TORTURE SYSTEM.
Opponents arise—Vives, Montaigne, Gräfe, etc.—Discussion in the schools 575
Abolished in Prussia in 1740 579
in Saxony, Austria, Russia 580
Continued in Baden till 1831—Retention of the Inquisitorial Process, and Revival of Torture
in the German Empire 581
Abolished in Spain in 1812 582
in France, 1780-1789 583
in Italy in 1786 586
Retained in Naples 587
Recent instances of its use 588

I.
THE WAGER OF LAW.
CHAPTER I.
RESPONSIBILITY OF THE KINDRED.

The conception of crime as a wrong committed against society is too
abstract to find expression in the institutions of uncivilized communities.
The slayer or the spoiler is an enemy, not of his fellows in general, but only
of the sufferer or of his kindred; and if society can provide means for the
wronged to exact reparation, it has done its duty to the utmost, and has,
indeed, made a notable advance on the path that leads from barbarism to
civilization. How recent has been our progress beyond this stage of
development is illustrated in the provisions of a code granted so lately as
1231 by the Abbey of St. Bertin to the town of Arques. By these laws, when
a man was convicted of intentional homicide, he was handed over to the
family of the murdered person, to be slain by them in turn.1 It still was
vengeance, and not justice, that was to be satisfied.
In early times, therefore, the wrong-doer owed no satisfaction to the law
or to the state, but only to the injured party. That injured party, moreover,
was not a mere individual. All the races of the great Aryan branch of
mankind have developed through a common plan of organization, in which
each family—sometimes merely the circle of near kindred, at others
enlarged into a gens or sept—was a unit with respect to the other similar
aggregations in the tribe or nation, presenting, with respect to personal
rights, features analogous to their communal holding of land.2 Within these
units, as a general rule, each individual was personally answerable for all,
and all were answerable for each. A characteristic incident of this system
was the wer-gild or blood-money, through which offences were condoned
and the aggrieved were satisfied by a payment made, when the crime was
homicide, to the kindred of the slain, and generally contributed by the
kindred of the slayer.

The fragments of the Avesta are the earliest records of Aryan legislation
that have reached us, and in them we find distinctly marked evidence of this
common responsibility of the kindred.3 Among the Hindus, the ancient
code, known as the Manava Dharma Sastra, represents a highly complex
social organization, in which primitive institutions have been completely
overlaid by the later and antagonistic elements of caste and Brahmanism,
but yet it reveals the existence of village communities which were a direct
development of the primal system of the family;4 and the ancient solidarity
of these communities is shown in the provision that if a murder or robbery
could not be traced, the village in which it occurred was obliged to make it
good, or that to which the track of the offender could be followed.5 In the
adventures of the Kauravas and Pandavas, moreover, the Mahabharata
preserves fragments of traditions conveying some indications of a pre-
existing solidarity among kindred.6 Much more clearly defined were the
Hellenic organizations of the patræ and phratriæ; while the institution of
the wer-gild is seen in the wages earned by Heracles in serving Omphale, to
be paid to the kinsmen of the murdered Iphitus; and its existence can be
traced to historic times in the payments provided by the Trallian laws to the
families of the subject Leleges and Minyans who might be slain. Sir Henry
Maine has acutely suggested, also, that the belief in an hereditary curse,
which plays so awful a part in Grecian legend, is derived from the primal
idea of the solidarity of the family group.7 In Rome, notwithstanding the
powerful Latin tendency to absorb all minor subdivisions into the state, the
institution of the gens, and the relationship between the patron and his
clients, bear striking analogies to the organizations which we find among
the Teutonic tribes as they emerge into history; while the fine imposed on
the elder Horatius, to expiate for his son the crime of slaying his sister,
shows a remnant still existing of the wer-gild levied on the relatives.8 The
early legislation of the Celts, both in the Irish and Welsh tribes, as we shall
presently see, carried the solidarity of the family to its highest point of
development. The same institutions form a prominent feature of social
organization among the Slavs. The Russian Mir, or communal society, is
evidently a development of the original family; while the Ruskaia Prawda,
the earliest extant code, promulgated by Yaroslav Vladomirovich in the
eleventh century, allows the relatives of a murdered man either to kill the
murderer or to accept a wer-gild from him. The district, moreover, in which

a homicide occurs is liable to a fine, unless the victim is an unknown
stranger: as such, there are none to claim compensation for him, he is
outside of all family organization, and the law has no protection for him.9 In
Poland, the laws in force until the close of the fifteenth century provided no
other penalty for murder than a wer-gild to be divided among the kindred
and friends of the slain; and during the fifteenth century there was only a
short term of imprisonment added.10 Among the southern Slavs the Zadruga
takes the place of the Russian Mir, and is a still more absolute and primitive
form of family organization.11
In obedience to this all-pervading tendency of organization, the barbarian
tribes which overthrew the Roman Empire based their institutions on two
general principles—the independence of the individual freeman and the
solidarity of the family group—and on these were founded their simple
forms of jurisprudence. As the criminal was not responsible to the state, but
to the injured party, personal punishments were unknown, and the law made
no attempt to decree them. All that it could do was to provide rude courts
before which a plaintiff could state his case, and a settled tariff of pecuniary
compensation to console him for his sufferings.12 If he disdained this
peaceful process, he was at liberty to assemble his kindred and friends, and
exact what satisfaction he could with sword and axe. The offender,
moreover, could not legitimately refuse to appear when summoned before
the mallum, or judicial assembly of the tribe; nor could he, as a rule, claim
the right of armed defence, if the complainant preferred to receive the
money payment provided for the offence of which he might prove his
antagonist guilty.
This wer-gild was in no sense a fine inflicted as a punishment for guilt,
but only a compensation to induce the injured party to forego his right of
reprisals, and the interest which society felt in it was not in the repression of
crime, but in the maintenance of peace by averting the endless warfare of
hostile families. An Anglo-Saxon proverb, quoted approvingly in the laws
of Edward the Confessor, as collected by William the Conqueror, says:
“Bicge spere of side oðer bere”—Buy off the spear from thy side or endure
it.13 The application of the system is to be seen in the minute and complex
tariffs of crime which form so large a portion of the barbarian codes. Every
attempt against person and property is rated at its appropriate price, from

the theft of a sucking pig to the armed occupation of an estate, and from a
wound of the little finger to the most atrocious of parricides. To what extent
this at last was carried may be seen in the Welsh codes, where every hair of
the eyelash is rated at a penny.14
This system introduced into legal proceedings a commercial spirit which
seems strangely at variance with the savage heroism commonly attributed
to our barbarian ancestors. In the translation by Mr. Dasent of the old
Icelandic Saga of Burnt Njal is vividly set forth the complex procedure
which arose from the development of these principles, whereby suits could
be sold and assigned by one party to another, and a plaintiff with a
promising claim for damages would part with it to some speculator who
undertook the chances of the suit; or, if the prospects were not encouraging,
he would pay some shrewd lawyer or mighty warrior to prosecute it in his
stead. As either party in the primitive Icelandic code could at any moment
interrupt the proceedings with a challenge to single combat, or a powerful
pleader might collect his friends for a raid on the Althing, and thus break up
the court, this traffic in suits was a speculation well fitted to vary the
monotony of a sea-rover’s life on shore.
In the application of this principle of compensation the solidarity of the
family bore a part as conspicuous as in the alternative of private warfare.
The kindred of the offender were obliged to contribute shares proportionate
to their degrees of relationship; while those of the man who was wronged
received respective percentages calculated on the same basis. Thus the most
ancient Barbarian code that has reached us—that of the Feini, or primitive
Irish—in a fanciful quadripartite enumeration of the principles in force in
levying fines, alludes to the responsibility of kindred—“And because there
are four things for which it is levied: ‘cin’ (one’s own crime), and ‘tobhach’
(the crime of a near kinsman), ‘saighi’ (the crime of a middle kinsman), and
the crime of a kinsman in general.”15 A very complete example of the
development of this system is to be found in the Icelandic legislation of the
twelfth century, where the fines exacted diminish gradually, as far as the
relatives in the fifth degree on both sides, each grade of the criminal’s
family paying its rate to the corresponding grade of the sufferer’s kindred.16
When, however, the next of kin were females, and were thus incompetent to
prosecute for murder, the person who undertook that office was rewarded

with one-third of the fine.17 It was not until about 1270 that King Haco, in
his unsuccessful attempt to reform these laws, ventured to decree that in
cases of murder the blood-money should not be divided among the family
of the victim, but should all be paid to the heir.18 On the other hand, in
Denmark, Eric VII., in 1269, relieved the kindred of the murderer from
contributing to the wer-gild, although it continued to be divided among the
relatives of the slain.19
Among the Welsh the provisions for levying and distributing the fines
were almost as complex as those of the early Icelandic law, one body of
jurisprudence extending the liability even as far as sixth cousins;20 and
perhaps the quaintest expression of the responsibility of the kindred is to be
found in the regulation that if any one should draw blood from the abbot of
either of the seven great houses of Dyved, the offender should forfeit seven
pounds, while a female of his kindred should become a washerwoman in
token of disgrace.21 The firm hold which this practical solidarity of the
family had upon the jurisprudence of the European races is shown by a
clause in the statutes of the city of Lille, as late as the fourteenth century,
where the malefactor had the right to collect from his relatives a portion of
the wer-gild which he had incurred; and elaborate tables were drawn up,
showing the amount payable by each relative in proportion to his degree of
kinship, the liability extending as far as to third cousins.22 A still more
pregnant example of the responsibility of kindred is found in the customs of
Aspres, in 1184, where the kindred of a homicide, if they would abjure him
by oath on relics, were entitled to the public peace; but, if they refused to do
so, it became the duty of the Count of Hainault, the Abbot of St. Vaast, and
the relatives of the slain, to hunt them down, and seize all their property.23
The introduction of Christianity, with the all-pervading sacerdotalism of
the church, rendered necessary an innovation on the primeval form of social
organization, for ecclesiastical ties dissolved those of the family. By the
Carlovingian legislation, when a priest was slain his wer-gild was paid to
the church, which was held to be nearer to him than any relative,24 though
this regulation subsequently was modified so as to divide the composition
into three parts, of which one was paid to the church of the deceased, one to
his bishop, and the third to his kindred.25 As a general rule, therefore, the
clerk could claim no share of the blood-money collected for the murder of

his kinsmen; nor be called upon to contribute to that incurred by his
family;26 though it is true that, by the Welsh laws of Hoel the Good,
compiled in the tenth century, children, even prospective, were a link
through which the liability might be again incurred. “Neither clerks nor
women are to have a share of the galanas, since they are not avengers;
however, they are to pay for their children or to make oath that they shall
never have any.”27
With this exception, therefore, in its relations to the community, each
family in the barbaric tribes was a unit, both for attack and defence, whether
recourse was had to the jealously preserved right of private warfare, or
whether the injured parties contented themselves with the more peaceful
processes of the mallum or althing. This solidarity of the kindred is the key
to much that would otherwise appear irrational in their legislation, and left,
as we have seen, its traces late in the customary law.

CHAPTER II.
THE OATH AND ITS ACCESSORIES.

Between the commission of an offence and its proof in a court of justice
there lies a wide field for the exercise or perversion of human ingenuity.
The subject of evidence is one which has taxed man’s reasoning powers to
the utmost; and the subtle distinctions of the Roman law, with its probatio,
præsumptio juris, præsumptio juris tantum: the endless refinements of the
glossators, rating evidence in its different grades, as probatio optima,
evidentissima, apertissima, legitima, sufficiens, indubitata, dilucida,
liquida, evidens, perspicua, and semiplena; and the artificial rules of the
common law, so repugnant frequently to human common sense, all alike
show the importance of the subject, and its supreme difficulty. The semi-
barbarian, impatient of such expenditure of logic, arrived at results by a
shorter process.
The time has passed for the romantic school of writers who assume that
the unsupported oath of the accused was originally sufficient to clear him of
a charge, when the fierce warrior disdained to shrink from the consequences
of his act. It was not, indeed, until long after the Teutonic tribes had
declined from the assumed virtues of their native forests, that an
unsupported oath was receivable as evidence, and the introduction of such a
custom may be traced to the influence of the Roman law, in which the
importance of the oath was overwhelming.28 The Wisigoths, who moulded
their laws on the Roman jurisprudence, were the only race of barbarians
who permitted the accused, in the absence of definite testimony, to escape
on his single oath,29 and this exception only tends to prove the rule, for at
the council of Valence, in 855, the Wisigothic custom was denounced in the
strongest terms as an incentive to perjury.30 It is true that the oath of a
master could clear a slave accused of certain crimes,31 which was no less an
incentive to perjury, for the master was liable in case of conviction, but
presumably in such case he took upon himself the responsibility and laid
himself open to an accusation of perjury. As a rule, however, we may
assume that the purgatorial power of a single oath was an innovation
introduced by the church, which was trained in the Roman institutions and
claimed for its members the privilege, when testimony was deficient, of

clearing themselves by appealing in this manner to God.32 Continued
contact with the remains of Roman civilization strengthened the custom,
and its development was to a great extent due to the revival of the study of
the imperial jurisprudence in the twelfth century.33 The primitive principle
is well expressed in the Frisian code, where the pleader says, “I swear
alone, if thou darest, deny my oath and fight me,”34 where the oath is only
the preliminary to proof by the judgment of God.
The exceptions to this in the early legislation of the barbarians are merely
special immunities bestowed on rank. Thus in one of the most primitive of
the Anglo-Saxon codes, which dates from the seventh century, the king and
the bishop are permitted to rebut an accusation with their simple
asseveration, and the thane and the mass-priest with a simple oath, while
the great body both of clerks and laymen are forced to clear themselves by
undergoing the regular form of canonical compurgation which will be
hereafter described.35 So, in the Welsh legislation, exemption from the oath
of absolution was accorded to bishops, lords, the deaf, the dumb, men of a
different language, and pregnant women.36 Instances of class-privileges
such as these may be traced throughout the whole period of the dark ages,
and prove nothing except the advantages claimed and enjoyed by caste.
Thus, by the law of Southern Germany, the unsupported oath of a claimant
was sufficient, if he were a person of substance and repute, while, if
otherwise, he was obliged to provide two conjurators,37 and in Castile, the
fijodalgo, or noble, could rebut a claim in civil cases by taking three solemn
oaths, in which he invoked on himself the vengeance of God in this world
and the next.38
So far, indeed, were the Barbarians from reposing implicit confidence in
the integrity of their fellows that their earliest records show how fully they
shared in the common desire of mankind to place the oath under the most
efficient guarantees that ingenuity could devise. In its most simple form the
oath is an invocation of some deity or supernatural power to grant or
withhold his favor in accordance with the veracity of the swearer, but at all
times men have sought to render this more impressive by interposing
material objects dear to the individual, which were understood to be offered
as pledges or victims for the divine wrath. Thus, among the Hindus, the

ancient Manava Dharma Sastra prescribes the oath as satisfactory evidence
in default of evidence, but requires it to be duly reinforced—

“In cases where there is no testimony, and the judge cannot decide
upon which side lies the truth, he can determine it fully by
administering the oath.
“Oaths were sworn by the seven Maharshis, and by the gods, to
make doubtful things manifest, and even Vasishtha sware an oath
before the king Sudama, son of Piyavana, when Viswamitra accused
him of eating a hundred children.
“Let not the wise man take an oath in vain, even for things of little
weight; for he who takes an oath in vain is lost in this world and the
next.
“Let the judge swear the Brahman by his truth; the Kshatriya by his
horses, his elephants, or his arms; the Vaisya by his cows, his corn, and
his gold; the Sudra by all crimes.”39

And in the more detailed code of Vishnu there is an exceedingly
complicated system of objects to be sworn upon, varying with the amount at
stake and the caste of the swearer.40
We see the same custom in Greece, where Homer represents Hera as
exculpating herself by an oath on the sacred head of Zeus, and on their
marriage-bed, a practice which mortals imitated by swearing on the heads
of their children, or on that of their patron, or of the king.41 Under the
Roman law, oaths were frequently taken on the head of the litigant, or on
those of his children.42 The Norse warrior was sworn, like the Hindu
Kshatriya, on his warlike gear:

“Oaths shalt thou
First to me swear,
By board of ship,
By rim of shield,
By shoulder of steed,

By edge of sword,
That thou wilt not slay
The wife of Volund,
Nor of my bride
Cause the death.”43
When these material pledges were not offered, the sanctions of religion
have in all ages been called into play to impress the imagination of the
swearer with the awful responsibility incurred, the presence of the deity
being obtained by the offer of a sacrifice, or his interposition being assured
by the use of some object of peculiar sacredness. In Deuteronomy, when the
corpse of a murdered man was found, the elders of the nearest city
disculpated themselves and their fellow-citizens before the Levites over the
body of a heifer slain for the purpose.44 We see the same principle applied
to promissory oaths in the horse which Tyndareus sacrificed and buried
when he exacted from the suitors of Helen the oath that they would accede
to her choice of a bridegroom and defend her and her husband against all
comers;45 and it is only necessary to allude to the well-known Ara Maxima
of Hercules in Rome to show the prevalence of the same customs among
the Italiotes. Similar practices were familiar to the Norsemen. Among them
the Godi was both priest and judge, the judgment-seat adjoined the temple,
and all parties to a suit, including judge and witnesses, were solemnly
sworn upon the sacred ring kept for that purpose on the altar. It was
sprinkled with the blood of a sacrificial bull, and then the oath was taken by
invoking Freyr and Niord, and the almighty As to help the swearer as he
should maintain truth and justice.46 Yet so little did all these precautions
serve to curb the untruthfulness of the cunning sea-kings that in Viga-
Glums Saga we find Glum denying a charge of murder by an oath taken in
three temples, in which he called Odin to witness in words so craftily

framed that while he was in reality confessing his guilt he apparently was
denying it most circumstantially.47
Similarly in Christian times, the most venerated forms of religion were,
from a very early period, called in to lend sanctity to the imprecation, by
devices which gave additional solemnity to the awful ceremony. In this the
natural tendency of the church to follow the traditional customs of the
populations from which its members were drawn was reinforced by the
example of the practices of Judaism. The “covenant between the pieces,” by
which Yahveh confirmed his promises to Abram, and by which the Jews
renewed their promises to him, was a sacrificial ceremony of the most
impressive character, only to be used on occasions of supreme importance.
As soon as a permanent place of worship was provided, the altar in the
temple was resorted to by litigants in order that the oath might be taken in
the presence of Yahveh himself; and so powerful was the impression of this
upon the Christian mind that in the early ages of the church there was a
popular superstition that an oath taken in a Jewish synagogue was more
binding and more efficient than one taken elsewhere.48 These beliefs
developed into a great variety of formulas, which would reward an
examination more detailed than that which I can give them here.
In the middle of the sixth century, Pope Pelagius I. did not disdain to
absolve himself from the charge of having been concerned in the troubles
which drove his predecessor Vigilius into exile, by taking a disculpatory
oath in the pulpit, holding over his head a crucifix and the gospels;49 and in
the eighth century a priest accused without witnesses to prove his guilt was
enabled to absolve himself by placing the cross upon his head and declaring
his innocence by the Everlasting God.50 So, when the holy Gregory of
Tours was accused of reproachful words truly spoken of Queen Fredegonda,
a council of bishops decided that he should clear himself of the charge by
oaths on three altars, after celebrating mass on each, which he duly
performed, doubtless more to his corporeal than his spiritual benefit.51 This
plan of reduplicating oaths on different altars was an established practice
among the Anglo-Saxons, who, in certain cases, allowed the plaintiff to
substantiate his assertion by swearing in four churches, while the defendant
could rebut the charge by taking an oath of negation in twelve.52 Seven
altars are similarly specified in the ancient Welsh laws in cases where a

surety desired to deny his suretyship;53 and, according to the Fleta, as late
as the thirteenth century, a custom was current among merchants of proving
the payment of a debt by swearing in nine churches, the abuse of which led
to its abrogation.54
The intense veneration with which relics were regarded, however, caused
them to be generally adopted as the most effective means of adding security
to oaths, and so little respect was felt for the simple oath that, ere long, the
adjuncts came to be looked upon as the essential feature, and the
imprecation itself to be divested of binding force without them. Thus, in
680, when Ebroin, mayor of the palace of Burgundy, had defeated Martin,
Duke of Austrasia, and desired to entice him from his refuge in the
stronghold of Laon, two bishops were sent to him bearing the royal
reliquaries, on which they swore that his life should be safe. Ebroin,
however, had astutely removed the holy remains from their cases in
advance, and when he thus got his enemy in his power, he held it but a
venial indiscretion to expose Martin to a shameful death.55 How thoroughly
this was in accordance with the ideas of the age is shown by the
incorporation, in the canons of the church, of the doctrine that an oath was
to be estimated by its externals and not by itself. The penitential of David,
dating from the latter half of the sixth century, provides that perjury
committed in a church shall be punished by a fine of four times the value of
that for which the false oath was taken,56 but no penalty is provided for
false swearing elsewhere. As the theory developed itself this tacit
condoning of such perjury was boldly declared to be good ecclesiastical
law, and the venerable code of morality which passes under the name of
Theodore Archbishop of Canterbury assumes that a false oath taken on a
consecrated cross requires, for absolution, three times the penance
necessary in cases where the oath had been taken on an unconsecrated one,
while, if the ministration of a priest had not been employed, the oath was
void, and no penalty was inflicted for its violation.57 In a similar mood the
penitential known as that of Gregory III. provides that three years’ penance
will absolve for perjury committed on a consecrated cross or on the hand of
a bishop or priest, while seven years are requisite if the oath has been taken
on the gospels or on an altar with relics.58 This rule took its final shape in
the canon law, which provides one year’s penance for perjury committed on

an unconsecrated cross, and three years’ for that on a consecrated one, or on
the hand of a bishop.59
These principles were adopted as the fundamental basis of all legal
procedures in Wales. Every prosecution and defence required relics to give
validity to the oaths of both parties, and even in the fifteenth century a
collection of laws declares that a plaintiff coming into court without a relic
on which to make his oath, not only lost his cause, but incurred a fine of
nine-score pence. The same tendency is shown in the rule by which a man
who suspected another of theft could go to him with a relic, and in the
presence of witnesses demand an oath of negation, a failure in which was a
conviction of the crime imputed, without further trial.60 In the same spirit,
ecclesiastical authority was even found to admit that a powerful motive
might extenuate the sin of perjury. If committed voluntarily, seven years of
penitence were enjoined for its absolution; if involuntarily, sixteen months,
while if to preserve life or limb, the offence could be washed out with four
months.61 When such doctrines were received and acted upon, we can
hardly wonder at the ingenious device which the sensitive charity of King
Robert the Pious imitated from the duplicity of Ebroin, to save the souls of
his friends. He provided two reliquaries on which to receive their oaths—
one for his magnates, splendidly fabricated of crystal and gold, but entirely
empty, the other for the common herd, plainer and enshrining a bird’s egg.
Knowing in advance that his lieges would be forsworn, he thus piously
sought to save them from sin in spite of themselves, and his monkish
panegyrist is delighted in recounting this holy deceit.62
It was easy, from a belief such as this, to draw the deduction that when an
oath was sworn on relics of peculiar sanctity, immediate punishment would
follow perjury; and thus it followed that some shrines obtained a reputation
which caused them to be resorted to in the settlement of disputed judicial
questions. Even as early as St. Augustin there are traces of such practices,
which that Father of the Church not only records, but imitated,63 and at a
later period the legends are numerous which record how the perjured sinner
was stricken down senseless or rendered rigid and motionless in the act of
swearing falsely.64 From this point of view oaths were really ordeals, and as
such we shall consider them hereafter. At present it suffices to observe that
the profit which the church derived from thus administering oaths on relics

affords an easy explanation of her teachings, and of the extension of these
practices. Their resultant advantages are well illustrated by the example of
the holy taper of Cardigan, in Wales. A miraculous image of the Virgin was
cast ashore, bearing this taper burning in its hand. A church was built for it,
and the taper “contynued styll burnynge the space of nyne yeres, without
wastynge, until the tyme that one forsware himselfe thereon, so then it
extincted, and never burned after.” At the suppression of the house under
Henry VIII., the prior, Thomas Hore, testified: “Item, that since the
ceasynge of burnynge of the sayd taper, it was enclosed and taken for a
greate relyque, and so worshipped and kyssed of pylgremes, and used of
men to sweare by in difficill and harde matters, whereof the advauntage
admounted to greate sommes of money in tymes passed, payenge yerely to
the same XXti nobles for a pencion unto thabbott of Chersey.”65
In all this Spain would seem to be exceptional. In the thirteenth century
the rule is expressed that a pleader must take the oath required of him by his
antagonist; if he is required to swear by God, it will not suffice for him to
swear by some saint, or by his own head. Oaths could indeed be taken on
crosses or altars, but they could also be reduced to the simplest
asseveration. Thus, there is a provision that if one party says “Swear to me
on your simple word,” then the reply “know that it is so,” or “believe me
that it is so,” suffices, and has all the force of the most solemn adjuration.66

CHAPTER III.
CONJURATORS, OR PARTAKERS IN THE OATH.

Notwithstanding the earnestness with which these teachings were
enforced, it may readily be believed that the wild barbarian, who was
clamoring for the restoration of stolen cattle, or the angry relatives, eager to
share the wer-gild of some murdered kinsman, would scarce submit to be
balked of their rights at the cost of simple perjury on the part of the
criminal. We have seen that both before and after their conversion to
Christianity they had little scruple in defiling the most sacred sanctions of
the oath with cunning fraud, and they could repose little confidence in the
most elaborate devices which superstition could invent to render perjury
more to be dreaded than defeat. It was therefore natural that they should
perpetuate an ancestral custom, which had arisen from the structure of their
society, and which derived its guarantee from the solidarity of families
alluded to above. This was the custom which was subsequently known as
canonical compurgation, and which long remained a part of English
jurisprudence, under the name of the Wager of Law. The defendant, when
denying the allegation under oath, appeared surrounded by a number of
companions—juratores, conjuratores, sacramentales, collaudantes,
compurgatores, as they were variously termed—who swore, not to their
knowledge of the facts, but as sharers and partakers in the oath of denial.
This form of procedure derives importance from the fact that it is an
expression of the character, not of an isolated sept, but of nearly all the
races that have moulded the destinies of modern Europe. Although
unknown to the Roman law, there are traces of it in the ancient Hellenic
legislation.67 The Ostrogoths in Italy, and the Wisigoths of the south of
France and Spain were the only nations in whose extant codes it occupies
no place, and they, as has already been remarked, at an early period yielded
themselves completely to the influence of the Roman civilization.68 On the
other hand, the Salians, the Ripuarians, the Alamanni, the Baioarians, the
Lombards, the Frisians, the Norsemen, the Saxons, the Angli and Werini,
the Anglo-Saxons, and the Welsh, races whose common origin must be
sought in the prehistoric past, all gave to this form of purgation a prominent

position in their jurisprudence, and it may be said to have reigned from
Southern Italy to Scotland.69
The earliest text of the Salic law presents us with the usages of the
Franks unaltered by any allusions to Christianity, and it may therefore be
presumed to date from a period not later than the conversion of Clovis. In
this primitive code there are directions for the employment of conjurators,
which show that the procedure was a settled and established form at that
period.70 So in the Frisian law, which, although compiled in the eighth
century, still reveals pagan customs and the primitive condition of society,
the practice of compurgation evidently forms the basis of judicial
proceedings. The Islands Landnamabok also exhibits it as a form of regular
procedure among the heathen Norsemen. Although the other codes have
only reached us in revisions subsequent to the conversion of the several
tribes, still, the universal use of the practice shows that its origin must be
traced to a period anterior to the separation of the several races from the
original common stock.
The church, with the tact which distinguished her dealings with her new
converts, was not long in adopting a system which was admirably suited for
her defence in an age of brute force. As holy orders sundered all other ties,
and as the church was regarded as one vast family, ecclesiastics speedily
arrogated to themselves and obtained the privilege of having men of their
own class as compurgators, and, thus fortified for mutual support, they were
aided in resisting the oppressors who invaded their rights on every hand.
This claim, with all its attendant advantages, was fully conceded when
Charlemagne, in the year 800, went to Rome for the purpose of trying Pope
Leo III. on a grave charge, and in that august presence the Pontiff, whom no
witnesses dared to accuse, cleared himself of the crimes imputed to him by
solemnly taking the oath of denial in company with twelve priests as
compurgators.71 Three years afterwards, the Emperor decreed that, in all
doubtful cases, priests should defend themselves with three, five, or seven
ecclesiastical compurgators, and he announced that this decision had been
reached by the common consent of pope, patriarchs, bishops, and all the
faithful.72 It is true that a few months later, on being shown a decretal of
Gregory II.73 ordering the clergy to rebut with their single oaths all
accusations unsupported by witnesses, he modified his previous command,

and left the matter to the discretion of his prelates; but this had no practical
result, for Charlemagne’s capitulary was adopted in the canon law and
ascribed to Leo himself.74 The custom soon received the papal sanction
again in the most solemn manner. In 823, Pope Pascal I. was more than
suspected of complicity in the murder of Theodore and Leo, two high
dignitaries of the papal court. Desirous to avoid an investigation by the
commissioners sent by Louis le Débonnaire, he hastily purged himself of
the crime in anticipation of their arrival, by an oath taken with a number of
bishops as his compurgators;75 and it is a striking example of the weight
accorded to the procedure that, although the assumed fault of the victims
had been their devotion to the imperial party, and though the pope had by
force of arms prevented any pursuit of the murderers, the emperor was
powerless to exact satisfaction, and there was nothing further to be done.
Pope Pascal stood before the world an innocent man.
It is true that, in the tenth century, Atto of Vercelli complains bitterly that
a perverse generation refused to be satisfied with the single oath of an
accused priest, and required him to be surrounded by compurgators of his
class, which that indignant sacerdotalist regarded as a grievous wrong.76 As
the priesthood, however, failed in obtaining the entire immunity for which
they strove during those turbulent times, the unquestioned advantages
which compurgation afforded recommended it to them with constantly
increasing force. Forbidden at length to employ the duel in settling their
differences, and endeavoring, in the eleventh and twelfth centuries, to
obtain exemption from the ordeal, they finally accepted compurgation as
the special mode of trial adapted to members of the church, and for a long
period we find it recognized as such in all the collections of canons and
writings of ecclesiastical jurists.77 From this fact it obtained its appellation
of purgatio canonica, or canonical compurgation.

CHAPTER IV.
SELECTION OF COMPURGATORS.

As already remarked, the origin of the custom is to be traced to the
principle of the unity of families. As the offender could summon his kindred
around him to resist an armed attack of the injured party, so he took them
with him to the court, to defend him with their oaths. Accordingly, we find
that the service was usually performed by the kindred, and in some codes
this is even prescribed by law, though not universally.78 This is well
illustrated in the Welsh laws, where the raith, or compurgation, was the
basis of almost all procedure, and where consequently the system was
brought to its fullest perfection. Complicated rules existed as to the
proportion of paternal and maternal kindred required in various cases, and
the connection between the wer-gild and the obligation of swearing in
defence of a kinsman was fully recognized—“Because the law adjudges the
men nearest in worth in every case, excepting where there shall be men
under vows to deny murder,” therefore the compurgators were required to
be those “nearest to obtain his worth if killed.”79 Under these
circumstances, the raith-man could be objected to on the score of not being
of kin, when the oaths of himself and his principal were received as
sufficient proof of relationship;80 and the alltud, or foreigner, was not
entitled to the raith unless he had kindred to serve on it.81 How the custom
sometimes worked in practice among the untameable barbarians is fairly
illustrated by a case recounted by Aimoin as occurring under Chilperic I. in
the latter half of the sixth century. A wife suspected by her husband offered
the oath of purgation on the altar of St. Denis with her relatives, who were
persuaded of her innocence; the husband not yet satisfied, accused the
compurgators of perjury, and the fierce passions of both parties becoming
excited, weapons were speedily drawn, and the sanctity of the venerable
church was profaned with blood.82
It was manifestly impossible, however, to enforce the rule of kinship in
all cases, for the number of compurgators varied in the different codes, and
in all of them a great number were required when the matter at stake was
large, or the crime or criminal important. Thus when Chilperic I. was
assassinated in 584, doubts were entertained as to the legitimacy of his son

Clotair, an infant of four months—doubts which neither the character of
Queen Fredegonda nor the manner of Chilperic’s death had any tendency to
lessen—and Gontran, brother of the murdered king, did not hesitate to
express his belief that the royal child’s paternity was traceable to some one
of the minions of the court, a belief doubtless stimulated by the promise it
afforded him of another crown. Fredegonda, however, repaired her
somewhat questionable reputation and secured the throne to her offspring,
by appearing at the altar with three bishops and three hundred nobles, who
all swore with her as to the legitimacy of the little prince, and no further
doubts were ventured on the delicate subject.83 A similar case occurred in
Germany in 899, when Queen Uta cleared herself of an accusation of
infidelity, by taking a purgatorial oath with eighty-two nobles.84 So in 824,
a dispute between Hubert, Bishop of Worcester, and the Abbey of Berkeley,
concerning the monastery of Westbury, was settled by the oath of the
bishop, supported by those of fifty mass-priests, ten deacons, and a hundred
and fifty other ecclesiastics.85 These were, perhaps, exceptional instances,
but in Wales the law required, as a regular matter, enormous numbers of
compurgators in many cases. Privity to homicide, for instance, was divided
into three triads, or nine classes of various degrees of guilt. Of these, the
first triad called for one hundred raith-men to establish the denial; the
second triad, 200, and the third, 300;86 while, to rebut an accusation of
killing with savage violence or poisoning, the enormous number of six
hundred compurgators was considered necessary.87 Even these armies of
oath-takers did not widen the circle from which selection was allowed, for
the law absolutely specifies that “the oaths of three hundred men of a
kindred are required to deny murder, blood, and wound,”88 and the
possibility of finding them is only explicable by the system of tribes or
clans in which all were legally related one to another. This is illustrated by a
further regulation, according to which, under the Gwentian code, in an
accusation of theft, with positive evidence, the thief was directed to clear
himself with twenty-four raith=men of his own cantrev or district, in equal
number from each cymwd or sub-district.89
Under a different social organization, it is evidently impossible that a
kindred sufficiently large could have been assembled in the most numerous
families, and even when the requirements were more reasonable, the same
difficulty must frequently have occurred. This is recognized in the Danish

laws of the thirteenth and fourteenth centuries, where the conjuratorial oaths
of kindred, known as neffn i kyn, were requisite, unless the accused could
swear that he had no relations, in which case he was allowed to produce
twelve other men of proper character, lag feste men.90 In a constitution of
Frederic II. in 1235, the compurgators are required to be of the same class
as their principal, and to be sinodales homines, men of undoubted
character.91 Thus the aid of those not connected by ties of blood must often
have been necessary, and as it was a service not without danger, as we shall
see hereafter, it is not easy to understand how the requisite number was
reached. In certain cases, no doubt, the possibility of obtaining those not
bound by kindred to undertake the office is traceable to the liability which
in some instances rested upon a township for crime committed within its
borders;92 while the system of guilds in which the members shared with
each other a responsibility resembling that of kinship rendered participation
in the oath of denial almost a necessity when a comrade was prosecuted.93
It would be endless to specify all the variations in the numbers required
by the different codes in all imaginable cases of quarrel between every class
of society. Numerous elements entered into these regulations; the nature of
the crime or claim, the station of the parties, the rank of the compurgators,
and the mode by which they were selected. Thus, in the simplest and most
ancient form, the Salic law merely specifies twenty-five compurgators to be
equally chosen by both parties.94 Some formulas of Marculfus specify three
freeholders and twelve friends of the accused.95 A Merovingian edict of 593
directs the employment of three peers of the defendant, with three others
chosen for the purpose, probably by the court.96 Alternative numbers,
however, soon make their appearance, depending upon the manner in which
the men were chosen. Thus among the Alamanni, on a trial for murder, the
accused was obliged to secure the support of twenty designated men, or, if
he brought such as he had selected himself, the number was increased to
eighty.97 So, in a capitulary of 803, Charlemagne prescribes seven chosen
conjurators, or twelve if taken at random,98 a rule which is virtually the
same as that laid down by the Emperor Henry III. in the middle of the
eleventh century.99 In 922 the council of Coblentz directs that accusations
of sacrilege could be rebutted with twenty-four chosen men, or seventy-two
freemen not thus selected.100 In Bigorre the law thus discriminated against

the cagots—an infamous wandering race of uncertain origin—for cases in
which the oaths of seven conjurators ordinarily sufficed required thirty
cagots, when the latter were called upon to act.101 In an English record of
the fifteenth century we find a defendant called upon to prove his innocence
with six of his neighbors or twelve strangers.102
Strangely enough, the church at one time adopted the principle that the
higher the rank of the accused the more he must present of his peers as
compurgators. Thus the bishop required eleven bishops, the priest five
priests, and the deacon two deacons; but Cardinal Henry of Susa who
enunciates this says it is an error, and that the number is at the discretion of
the judge.103 The rule, moreover, that the compurgators must be of the same
rank and class as the accused was waived when they were presumably
inimical to him or the proper number could not be had, and thus a cleric
might be cleared by the oaths of laymen.104
Variations likewise occur arising from the nature of the case and the
character of the plaintiff. Thus in the Scottish law of the twelfth century, in
a criminal charge, a man could defend himself against his lord with eleven
men of good reputation, but if the king were the accuser, twenty-four were
requisite, who were all to be his peers, while in a civil case twelve were
sufficient.105 So in the burgher laws of David I., ordinary cases between
citizens were settled with ten conjurators, but eleven were necessary if the
king were a party, or if the matter involved the life, limb, or lands of one of
the contestants; and in cases occurring between a citizen and a countryman,
each party had to provide conjurators of his own class.106 In the
complicated rules for compurgation which form the basis of the Welsh
jurisprudence, there are innumerable details of this nature. We have seen
that for some crimes many hundred raith-men were required, while similar
numbers were enjoined in some civil suits respecting real property.107 From
this the number diminishes in proportion to the gravity of the case, as is
well illustrated by the provisions for denying the infliction of a bruise. If the
mark remained until the ninth day, the accused could deny it with “two
persons of the same privilege as himself;” if it remained until the eighteenth
day, the oaths of three conjurators were necessary; if till the twenty-seventh
day, four raith-men were required.108

The character of the raith-men also affected the number demanded. Thus,
in a collection of Welsh laws of the fifteenth century there is an explanation
of the apparent anomaly that privity to theft or homicide required for its
defence a vastly greater number of compurgators than the commission of
the crime itself. The large bodies prescribed for the former consisted simply
of any men that could be had—of course within the recognized grades of
kindred—while, for the latter, rules of varying complexity were laid down.
Thus, of the twenty-four required for theft, in some texts it is prescribed that
two-thirds are to be of the nearest paternal kin, and one-third of the nearest
maternal; or, again, one-half nod-men.109 So, in accusations of homicide,
the same proportions of paternal and maternal kindred were required, all
were to be proprietors in the country of the raith, and three, moreover, were
to be men under vows of abstinence from linen, horses, and women, besides
a proper proportion of nod-men.110
Instances also occur in which the character of the defendant regulated the
number required. Among the Welsh, the laws of Hoel Dda provide that a
wife accused of infidelity could disprove a first charge with seven women;
if her conduct provoked a second investigation, she had to procure fourteen;
while, on a third trial, fifty female conjurators were requisite for her
escape.111 Another application of the same principle is found in the
provision that when a man confessed a portion of the crime imputed to him
and denied the remainder, an augmented raith was required to support his
denial, because it is more difficult to believe a man who has admitted his
participation in a criminal act. Thus when only fifty men were requisite to
rebut a charge of homicide, and the accused admitted one of the accessories
to homicide, his denial of the main charge had to be substantiated by one
hundred, two hundred, or three hundred men, according to the nature of the
case. On the other hand, where no criminal act was concerned, confession
of a portion diminished the raith for the remainder. Thus in a claim for
suretyship, six compurgators were necessary to the defendant; but if he
admitted part of the suretyship, his unsupported oath was sufficient to rebut
the remainder, as the admission of a portion rendered him worthy of
belief.112 In the Anglo-Saxon jurisprudence, the frangens jusjurandum, as it
was called, also grew to be an exceedingly complex system in the rules by
which the number and quality of the conjurators were regulated according
to the nature of the crime and the rank of the accused. In cases of peculiar

atrocity, such as violation of the sanctity of the grave, only thanes were
esteemed competent to appear.113 In fact, among the Anglo-Saxons, the
value of a man’s oath was rated according to his rank, that of a thane, for
instance, being equal to those of seven villeins.114 The same peculiarity is
observable among the Frisians, whose laws required that compurgators
should be of the same class as their principal, and the lower his position in
the State, the larger was the number requisite.115
It was, however, not only the number of compurgators required that
affected the result, but the method by which they were chosen, and this
gave rise to wide variations in practice. Originally, it is probable that the
selection was left to the accused, who gathered them from among his
kindred. This would lead almost inevitably to his acquittal, as forcibly
pointed out by Hincmar in the ninth century. In objecting to admit the
purgation of an offending priest with ecclesiastics of his own choice, he
states that evil-minded men combined together to defeat justice and secure
immunity for their crimes by serving each other in turn, so that when the
accused insisted on offering his companions to the oath, it was necessary to
make them undergo the ordeal to prove their sincerity.116 His expressions
indicate that the question of selection at that time was undecided in France,
and the alternative numbers alluded to above show one of the methods
adopted to meet the evident evils of the process. Other nations devised
various expedients. The original Lombard law of King Rotharis gave to the
plaintiff the privilege of naming a majority of the compurgators, the
remainder being chosen by the defendant,117 but even in this the solidarity
of the family was recognized, since it was the duty of the plaintiff to select
the nearest relatives of his adversary, provided they were not personally
hostile to the accused.118 This same spirit is shown even so late as 1116, in a
charter by which Baldwin VII. of Flanders gratified the citizens of Ypres by
substituting among them the process of compurgation for the ordeal and
battle trial. According to this, the accuser selected four of the relatives of
the accused to take the purgatorial oath; if they refused through known
enmity, he was bound to select four other of the kindred, and if none such
were to be found then four legal men sufficed.119 The English law was the
first to educe a rational mode of trial from the absurdity of the barbaric
traditions, and there the process finally assumed a form which occasionally
bears a striking resemblance to trial by jury—in fact, it insensibly runs into

the latter, to the rise of which it probably contributed. By the laws of
Canute, in some cases, fourteen men were named to the defendant, among
whom he was obliged to find eleven willing to take the purgatorial oath
with him.120 The selection of these virtual jurors was probably made by the
gerefa, or sheriff;121 they could be challenged for suspicion of partiality or
other competent cause, and were liable to rejection unless unexceptionable
in every particular.122 Very similar to this was the stockneffn of the ancient
Danish law, by which, in cases where the relatives were not called upon,
thirteen men were chosen, a majority of whom could clear the accused by
taking the oath with him. They were nominated by a person appointed for
the purpose, and if the court neglected this duty, the privilege enured to the
plaintiff.123 More facile for the defence was a process prescribed in a
Spanish charter of 1135, where, in cases of homicide, it sufficed for the
accused to obtain five conjurators out of twelve selected by the
magistrates.124 A method combining selection and chance is described in
the custumal of Ipswich in the twelfth century, to decide questions of debt
between the townsfolk. The party on whom proof was incumbent brought in
ten men; these were divided into two bands of five each, and a knife was
thrown up between them; the band towards which the point of the knife fell
was taken, one of the five was set aside, and the remaining four served as
conjurators.125
The Northern nations were evidently less disposed to favor the accused
than the Southern. In Sweden and Denmark, another regulation provides
that although the defendant had a right to demand this mode of purgation,
yet the plaintiff had the selection of the twelve men who served as
conjurators; three of these the accused could challenge for enmity, but their
places were supplied by the plaintiff.126 The evanescent code compiled for
Iceland by Haco Haconsen and his son Magnus, towards the close of the
thirteenth century, is more equitable in its provisions. Though it leaves the
nomination of the conjurators to the defendant, the choice is subject to
limitations which placed it virtually in the power of the court. They were
required to be men of the vicinage, of good repute, peers of the accused,
and in no way connected with him by blood or other ties.127 The more
lasting code promulgated at the same time by Magnus for his Norwegian
dominions, a code which became the common law of Norway for 500

years, provides, for cases in which eleven conjurators are required, that
seven of them shall be selected of intelligent men of full age, and in no way
related to the accused, yet residents of the vicinage, and acquainted with the
facts; the accused can then add four more of good character, himself making
the twelfth.128 We see here, as in the English jurisprudence, how nearly the
conjuratorial process approaches to the jury-trial, and how completely it has
departed from its origin in the solidarity of the family.
Such care in the selection of those on whom duties so responsible
devolved did not prevail among the more Southern races at an earlier age.
Among the Lombards slaves and women in tutelage were often
employed.129 The Burgundians required that the wife and children, or, in
their absence, the father and mother of the accused should assist in making
up the number of twelve,130 the object being evidently to increase the
responsibility of the family for the action of its head. The abuses of this
custom, however, caused its prohibition under Charlemagne for the reason
that it led to the swearing of children of tender and irresponsible age.131
That legislator, however, contented himself with forbidding those who had
once been convicted of perjury from again appearing either as witnesses or
conjurators;132 and the little care that was deemed necessary in their
selection under the Carlovingian jurisprudence is shown by a law of Louis
le Débonnaire ordering that landless freemen should be allowed to serve as
conjurators, though ineligible as witnesses.133 A truer conception of the
course of justice is manifested, some centuries later, by the Béarnese
legislation, which required that the seguidors or conjurators, as well as the
testimonis or witnesses should be men able to pay the amount at stake,
together with the fine incurred by the losing party,134 or that they should be
fair and loyal men, not swayed by enmity.135
In ecclesiastical trials it would seem that the selection of compurgators
rested with the bishop. In a case occurring in the thirteenth century, of a
priest accused of homicide who failed in his compurgation, he appealed to
the Holy See on the ground that his accusers were perjurers and that the
bishop had chosen the compurgators to suit himself.136 As a matter of
course, the result of the trial depended, as it does with the modern jury, on
the fairness with which the choice was made, and in the universal

corruption of the middle ages there is no reason to suppose that favoritism
or bribery was not a controlling influence in a majority of cases.

CHAPTER V.
CONDITIONS OF COMPURGATION.

The conditions under which resort was had to this mode of deciding
litigation have been the subject of some discussion. It has been assumed
that, in the early period, before the ferocious purity of the Barbarians had
become adulterated under the influence of Roman civilization, it was used
in all description of cases, at the option of the defendant, and was in itself a
full and satisfactory proof, received on all hands as equal to any other.137
The only indication that I have met with, among the races of Teutonic stock,
tending to the support of such a conjecture, occurs in the Lombard code,
where Rotharis, the earliest compiler of written laws, abolishes a previously
existing privilege of denying under oath a crime after it had been
confessed.138 A much more powerful argument on the other side, however,
is derivable from the earliest text of the Salic law, to which reference has
already been made. In this, the formula shows clearly that conjurators were
only employed in default of other testimony;139 and what lends additional
force to the conclusion is that this direction disappears in subsequent
revisions of the law, wherein the influences of Christianity and of Roman
civilization are fully apparent. No safe deductions, indeed, can be drawn
from mere omissions to specify that the absence of witnesses was
necessary, for these ancient codes are drawn up in the rudest manner, and
regulations which might safely be presumed to be familiar to every one
would not, in their curt and barbarous sentences, be repeated with the
careful redundancy which marks our modern statutes. Thus there is a
passage in the code of the Alamanni which declares in the most absolute
form that if a man commits a murder and desires to deny it, he can clear
himself with twelve conjurators.140 This, by itself, would authorize the
assumption that compurgation was allowed to override the clearest and
most convincing testimony, yet it is merely a careless form of expression,
for another section of the same code expressly provides that where a fact is
proved by competent witnesses the defendant shall not have the privilege of
producing compurgators.141
It therefore seems evident that, even in the earliest times, this mode of
proof was only an expedient resorted to in doubtful matters, and on the

necessity of its use the rachinborgs or judges probably decided. A case
recorded in the Landnamabok certainly shows that among the heathen
Norsemen the Godi or priest-judge had this power, for when Thorbiorn
Digre prosecuted Thorarin of Mafahlid for horse-stealing, and demanded
that he should produce twelve conjurators, Arnkell, the Godi, decided that
the accused might clear himself with his simple oath on the holy ring of the
altar, and thus the prosecution came to naught except as leading to a bloody
feud.142 That this discretion was lodged in the court in subsequent times is
generally admitted. It is scarcely worth while to multiply proof; but a few
references will show the light in which the custom was regarded.143
As employed by the Church, the rule was distinctly enunciated in the
thirteenth century that the accused was not to be allowed to clear himself by
canonical purgation when the crime was notorious or when the accuser
offered to prove the charge.144
The Welsh, however, were exceptional in this respect. The raith was the
corner-stone of their system of jurisprudence. It was applied to almost all
actions, whether of civil or criminal law, and even cases of doubtful
paternity were settled by it, no woman, except one “of bush and brake” who
had no legal kindred, being allowed to give testimony or take an oath with
respect to the paternity of her illegitimate child.145 It excluded and
superseded all other procedures. If the accused declined to take the oath of
denial, then testimony on both sides could be introduced, and the case be
settled on the evidence adduced;146 but where he chose to abide by the
raith, the Book of Cynog formally declares that “Evidences are not to be
brought as to galanas [homicide], nor saraad [insults], nor blood, nor
wound, nor ferocious acts, nor waylaying, nor burning buildings, nor theft,
nor surety, nor open assault, nor adultery, nor violence, nor in a case where
guardians should be, nor in a case where an established raith is appointed
by law; because evidences are not to extinguish a raith.”147 Indeed, the only
case which I have found wherein it was refused is where a priest of the
same parish as one accused of theft testifies to have seen him in open
daylight with the article stolen in his possession, when apparently the
sacred character of the witness precludes a denial on the part of the
defendant.148

Among other races confidence in its ability to supplement absent or
deficient testimony was manifested in another form—the juramentum
supermortuum—which was employed by various nations, at wide intervals
of time. Thus, in the earliest legislation of the Anglo-Saxons, we find that
when the defendant or an important witness was dead, the oath which he
would have taken or the deposition which he would have made was
obtained by proceeding to his tomb, where a certain number of conjurators
swore as to what he could or would have done if alive.149 Two centuries
later, the same custom is alluded to in the Welsh laws of Hoel Dda,150 and
even as late as the thirteenth century it was still in force throughout
Germany.151 There were other cases in which evidence of any kind was
almost impossible, and in these the wager of law offered a convenient
resource. Thus, Frederic II., in 1235, decreed that a man harboring an
outlaw should himself be outlawed, but he was allowed to prove with six
conjurators that he was ignorant of the outlawry.152
A remarkable use of conjurators to confirm the evidence of witnesses
occurs in 850 in a dispute between Cantius, Bishop of Siena, and Peter,
Bishop of Arezzo, concerning certain parishes claimed by both. The
occasion was a solemn one, for it was before a council held in Rome
presided over jointly by Pope Leo IV. and the Emperor Louis II. Peter relied
upon written charters, while Cantius produced witnesses. The Emperor
pronounced the claim of the latter to be just, when he and twelve priests
swore that the oaths of the witnesses were true and without deceit,
whereupon the disputed parishes were adjudged to him.153
The employment of compurgators, however, depended frequently upon
the degree of crime alleged, or the amount at stake. Thus, in many codes,
trivial offences or small claims were disposed of by the single oath of the
defendant, while more important cases required compurgators, whose
numbers increased with the magnitude of the matter in question. This
principle is fairly illustrated in a charter granted to the Venetians in the year
1111 by Henry V. In suits which involved only the value of a silver pound,
the oath of the party was sufficient; but if the claim amounted to twelve
pounds or more, then twelve chosen men were requisite to substantiate the
oath of negation.154

In England in the thirteenth century we find compurgation very generally
employed in the manorial courts for the settlement of petty criminal actions.
So general was its use, indeed, that it obtained the name of “law,” as the
legal method par excellence, and the process is curtly described in the
reports as “facere legem,” “esse ad legem,” “vadiare legem,” whence is
derived the term “wager of law.” The number of compurgators was
generally two or five, and they seem to have been left, as a rule, to the
choice of the defendant, so that failure to procure the requisite number was
very unusual.155
In later times, compurgation was also sometimes used as an alternative
when circumstances prevented the employment of other popular modes of
deciding doubtful cases. Those, for instance, who would ordinarily be
required to defend themselves by the wager of battle, were permitted by
some codes to substitute the oaths of a certain number of conjurators, when
precluded by advanced age from appearing in the arena. The burgher law of
Scotland affords an example of this,156 though elsewhere such cases were
usually settled by the substitution of champions. Class privileges also
manifested themselves in this as in so many other features of mediæval law,
and we sometimes find compurgation allowed as a favor to those of gentle
birth. Thus, in the Council of Reims in 1119, among the provisions for the
enforcement of the Truce of God, accusations of its violation are rebutted
by knights with six compurgators, while common people are required to
undergo the ordeal.157

CHAPTER VI.
FORMULAS AND PROCEDURE.

The primitive lawgivers were too chary of words in their skeleton codes
to embody in them the formula usually employed for the compurgatorial
oath. We have therefore no positive evidence of its nature in the earliest
times; but as the forms made use of by several races at a somewhat later
period have been preserved, and as they resemble each other in all essential
respects, we may reasonably assume that little variation had previously
occurred. The most ancient that I have met with occurs in an Anglo-Saxon
formulary which is supposed to date from about A. D. 900: “By the Lord,
the oath is clean and unperjured which N. has sworn.”158 A century later, in
a compilation of the Lombard law, it appears: “That which the accused has
sworn is true, so help me God.”159 The form specified in Béarn, at a period
somewhat subsequent, is curt and decisive: “By these saints, he tells the
truth;”160 while the code in force in Normandy until the sixteenth century
directs an oath identical in spirit: “The oath which William has sworn is
true, so help me God and his saints.”161 It will be observed that all these,
while essentially distinct from the oath of a witness, are still unqualified
assertions of the truth of the principal, and not mere asseverations of belief
or protestations of confidence. The earliest departure from this positive
affirmation, in secular jurisprudence, occurs in the unsuccessful attempt at
legislation for Norway and Iceland by Haco Haconsen in the thirteenth
century. In this, the impropriety of such oaths is pointed out, and it is
directed that in future the compurgator shall swear only, in confirmation of
his principal, that he knows nothing to the contrary.162 In the similar code
promulgated in 1274 by his son Magnus in Norway, it is directed that the
accused shall take a full oath of denial, and the conjurators shall swear in
the same words that his oath is true, and that they know nothing truer.163
We shall see that, before the custom fell into total disuse, the change
which Haco vainly attempted, came to be generally adopted, in
consequence, principally, of the example set by the church. Even before this
was formally promulgated by the Popes, however, ecclesiastics occasionally
showed that they were more careful as to what they swore, and at a

comparatively early period they introduced the form of merely asserting
their belief in the oath taken by their principal. Thus, in 1101, we find two
bishops endeavoring to relieve a brother prelate from a charge of simony,
and their compurgatorial oath ventures no further than “So help me God, I
believe that Norgaud, Bishop of Autun, has sworn the truth.”164
In the form of oath, however, as well as in so many other particulars, the
Welsh had a more complicated system, peculiar to themselves. The ordinary
raith-man only was required to take an oath “that it appears most likely to
him that what he swears to is true.” In many aggravated crimes, however, a
certain proportion, generally one-half, had to be nod-men who were bound
to a more stringent form, as the law specifies that “the oath of a nod-man is,
to be in accordance with what is sworn by the criminal.”165 The difference,
as we have seen, in the numbers required when a portion were nod-men
shows how much more difficult it was to find men willing to swear to an
absolute denial, and how much more weight was attached to such a
declaration than to the lax expression of opinion contained in the ordinary
oath of the raith-man.
Variations are likewise observable in the form of administering the oath.
Among the Alamanni, for instance, the compurgators laid their hands upon
the altar, and the principal placed his hand over the others, repeating the
oath alone;166 while among the Lombards, a law of the Emperor Lothair
directs that each shall take the oath separately.167 It was always, however,
administered in a consecrated place, before delegates appointed by the
judges trying the cause, sometimes on the altar and sometimes on relics. In
the Welsh laws of the fifteenth century it is specified that all raiths shall be
administered in the parish church of the defendant, before the priest shall
have disrobed or distributed the sacramental bread.168 At an earlier period a
formula of Marculfus specifies the Capella S. Martini, or cope of St.
Martin,169 one of the most venerated relics of the royal chapel, whence we
may perhaps conclude that it was habitually used for that purpose in the
business of the royal Court of Appeals.
Notwithstanding the universality of the custom, and the absolute
character of the decisions reached by the process, it is easy to discern that
the confidence reposed in it was of a very qualified character, even at an

early period. The primitive law of the Frisians describes some whimsical
proceedings, prescribed for the purpose of determining the responsibility
for a homicide committed in a crowd. The accuser was at liberty to select
seven from among the participants of the brawl, and each of these was
obliged to deny the crime with twelve conjurators. This did not absolve
them, however, for each of them was also individually subjected to the
ordeal, which finally decided as to his guilt or innocence. In this, the value
of the compurgation was reduced to that of the merest technical ceremony,
and yet a failure to procure the requisite number of supporters was
tantamount to a conviction, while, to crown the absurdity of the whole, if
any one succumbed in the ordeal, his conjurators were punished as
perjurers.170 A similar want of confidence in the principle involved is
shown by a reference in the Anglo-Saxon laws to the conjurators of an
accused party being outsworn (overcythed), when recourse was likewise
had to the ordeal.171 Among the heathen Norsemen, indeed, an offer by
either party to produce conjurators could always be met by the antagonist
with a challenge to the duel, which at once superseded all other
proceedings.172 As regards the church, although the authoritative use of
compurgation among ecclesiastics would seem to demand for it among
them implicit faith in its results, yet we have already seen that, in the ninth
century, Hincmar did not hesitate to require that in certain cases it should be
confirmed by the ordeal; and two centuries later, a remark of Ivo of
Chartres implies a strong degree of doubt as to its efficacy. In relating that
Sanctio, Bishop-elect of Orleans, when accused of simony by a
disappointed rival, took the oath of negation with seven compurgators, he
adds that the accused thus cleared himself as far as he could in the eyes of
man.173 That the advantages it offered to the accused were duly appreciated,
both by criminals and judges, is evident from the case of Manasses,
Archbishop of Reims. Charged with simony and other offences, after
numerous tergiversations he was finally summoned for trial before the
Council of Lyons, in 1080. As a last effort to escape the impending doom,
he secretly offered to Bishop Hugh, the Papal legate, the enormous sum of
two hundred ounces of gold and other presents in hand, besides equally
liberal prospective payments, if he could obtain the privilege of
compurgation with six suffragan bishops. Gregory VII. was then waging too
uncompromising a war with the corroding abuse of simony for his
lieutenant to yield to any bribe, however dazzling; the proffer was spurned,

Manasses confessed his guilt by absence, and was accordingly deposed.174
Incidents like this, however, did not destroy confidence in the system, for,
some sixty years later, we find Innocent II. ordering the Bishop of Trent,
when similarly accused of simony, to clear himself with the oaths of two
bishops and three abbots or monks.175
The comparative value attached to the oaths of conjurators is illustrated
by the provisions which are occasionally met with, regulating the cases in
which they were employed in default of witnesses, or in opposition to them.
Thus, in the Baioarian law, the oath of one competent witness is considered
to outweigh those of six conjurators;176 and among the Lombards, an
accusation of murder which could be met with three witnesses required
twelve conjurators as a substitute.177
It is therefore evident that conjurators were in no sense witnesses, that
they were not expected to give testimony, and that they merely expressed
their confidence in the veracity of their principal. It may consequently at
first sight appear somewhat unreasonable that they should be held guilty of
perjury and subject to its penalties in case of unluckily sustaining the wrong
side of a cause. It is probably owing to this apparent injustice that some
writers have denied that they were involved in the guilt of their principal,
and among others the learned Meyer has fallen into this error.178 The proof,
however, is too clear for dispute. We have already seen that the oath was an
unqualified assertion of the justice of the side espoused, without reservation
justifying the escape of the compurgators from the charge of false swearing,
and one or two incidental references have been made to the punishments
inflicted on them when subsequently convicted of perjury. The code of the
Alamanni recognized the guilt involved in such cases when it denied the
privilege of compurgation to any one who had previously been more than
once convicted of crime, giving as a reason the desire to save innocent
persons from incurring the sin of perjury.179 Similar evidence is derived
from a regulation promulgated by King Liutprand in the Lombard Law, by
which a man nominated as a conjurator, and declining to serve, was obliged
to swear that he dared not take the oath for fear of his soul.180 A case in
point occurs in the life of St. Boniface, whose fellow-laborer Adalger in
dying left his property to the church. The graceless brothers of the deceased
disputed the bequest, and offered to make good their claim to the estate by

the requisite number of oaths. The holy man ordered them to swear alone,
in order not to be concerned in the destruction of their conjurators, and on
their unsupported oaths gave up the property.181
The law had no hesitation in visiting such cases with the penalties
reserved for perjury. By the Salic code unlucky compurgators were heavily
fined.182 Among the Frisians, they had to buy themselves off from
punishment by the amount of their wer-gild—the value set upon their
heads.183 A slight relaxation of this severity is manifested in the
Carlovingian legislation, by which they were punished with the loss of a
hand—the customary penalty of perjury—unless they could establish, by
undergoing the ordeal, that they had taken the oath in ignorance of the facts;
but even in trifling causes a defeated litigant could accuse his own
conjurator of perjury, when both parties were sent to the ordeal of the cross,
and if the conjurator broke down he lost a hand.184 So late as the close of
the twelfth century, we find Celestin III. ordering the employment of
conjurators in a class of cases about the facts of which they could not
possibly know anything, and decreeing that if the event proved them to be
in error they were to be punished for perjury.185 That such liability was fully
recognized at this period is shown by the argument of Aliprandus of Milan,
a celebrated contemporary legist, who, in maintaining the position that an
ordinary witness committing perjury must always lose his hand, without the
privilege of redeeming it, adds that no witness can perjure himself
unintentionally; but that conjurators may do so either knowingly or
unknowingly, that they are therefore entitled to the benefit of the doubt, and
if not wittingly guilty, that they should have the privilege of redeeming their
hands.186
All this seems in the highest degree irrational, yet in criticising the
hardships to which innocent conjurators were thus exposed, it should be
borne in mind that the whole system had become a solecism. In its origin, it
was simply summoning the kinsmen together to bear the brunt of the court,
as they were bound to bear that of battle; and as they were liable for a
portion of the fine which was the penalty of all crimes—personal
punishments for freemen being unknown—they could well afford to incur
the risk of paying for perjury in order to avoid the assessment to be levied
upon them in case of the conviction of their relative. In subsequent periods,

when the family responsibility became weakened or disused, and the
progress of civilization rendered the interests of society more complex, the
custom could only be retained by making the office one not to be lightly
undertaken. A man who was endeavoring to defend himself from a probable
charge of murder, or who desired to confirm his possession of an estate
against a competitor with a fair show of title, was expected to produce
guarantees that would carry conviction to the minds of impartial men. As
long as the practice existed, it was therefore necessary to invest it with
every solemnity, and to guard it with penalties that would obviate some of
its disadvantages.
Accordingly, we find that it was not always a matter of course for a man
to clear himself in this manner. The ancient codes have frequent provisions
for the fine incurred by those unable to procure the requisite number of
compurgators, showing that it was an occurrence constantly kept in mind by
legislators. Nor was it only landless and friendless men who were exposed
to such failures. In 794, a certain Bishop Peter was condemned by the
Synod of Frankfort to clear himself, with two or three conjurators, of the
suspicion of being involved in a conspiracy against Charlemagne, and,
small as was the number, he was unable to procure them.187 So, in the year
1100, when the canons of Autun, at the Council of Poitiers, accused their
bishop, Norgaud, of simony and other irregular practices, and he proposed
to absolve himself with the compurgatorial oaths of the Archbishop of Tours
and the Bishop of Rédon, the canons went privately to those prelates and
threatened that in such event they would bring an accusation of perjury and
prove it by the ordeal of fire, whereupon the would-be conjurators wisely
abandoned their intention, and Norgaud was suspended.188 I have already
referred (p. 51) to a case before the Papal Penitentiary about 1240, in which
a priest accused of homicide was put upon his purgation and failed,
whereupon his bishop deprived him of function and benefice, and he
hastened to Rome with a complaint that the bishop had not been impartial in
the selection of compurgators. The most rigid compliance with the
requisitions of the law was exacted. Thus the statutes of Nieuport, in 1163,
provide a heavy penalty, and in addition pronounce condemnation, when a
single one of the conjurators declines the oath.189 It goes without saying
that failure in compurgation was equivalent to conviction or confession.190

CHAPTER VII.
DECLINE OF COMPURGATION.

In a system of which the fundamental principle was so vicious, the best
efforts of legislation could prove but a slight palliation, and from an early
period we find efforts made for its abrogation or limitation. In 983, a
constitution of Otho II. abolished it in cases of contested estates, and
substituted the wager of battle, on account of the enormous perjury which it
occasioned.191 In England, a more sweeping denunciation, declaring its
abolition and replacing it with the vulgar ordeal, is found in the confused
and contradictory compilation known as the laws of Henry I.192
We have already seen, from instances of later date, how little influence
these efforts had in eradicating a custom so deeply rooted in the ancestral
prejudices of all the European races. The hold which it continued to enjoy
on the popular confidence is well illustrated by the oath which, according to
the Romancero, was exacted of Alfonso VI. of Castile, by the Cid to clear
him of suspicion of privity to the death of his brother and predecessor
Sancho II. at the siege of Zamora, where he was slain by Bellido Delfos—
“Que nos fagays juramento
Qual vos lo querrán tomar,
Vos y doce de los vuesos,
Quales vos querays juntar,
Que de la muerte del Rey
Non tenedes que culpar....
Ni tampoco della os plugo,
Ni a ella distes lugar.”193
The same reliance on its efficacy is shown in a little ballad by Audefroi-
le-Bâtard, a renowned trouvère of the twelfth century:—

LA BELLE EREMBORS.194
“Quand vient en mai, que l’on dit as lons jors,” etc.

In the long bright days of spring-time,
In the month of blooming May,
The Franks from royal council field
All homeward wend their way.
Rinaldo leads them onward,
Past Erembors’ gray tower,
But turns away, nor deigns to look
Up to the maiden’s bower.
Ah, dear Rinaldo!

Full in her turret window
Fair Erembors is sitting,
The love-lorn tales of knights and dames
In many a color knitting.
She sees the Franks pass onward,
Rinaldo at their head,
And fain would clear the slanderous tale
That evil tongues have spread.
Ah, dear Rinaldo!

“Sir knight, I well remember
When you had grieved to see
The castle of old Erembors
Without a smile from me.”
“Your vows are broken, princess,
Your faith is light as air,
Your love another’s, and of mine
You have nor reck nor care.”
Ah, dear Rinaldo!

“Sir knight, my faith unbroken,
On relics I will swear;
A hundred maids and thirty dames
With me the oath shall share.
I’ve never loved another,
From stain my vows are free.
If this content your doubts and fears,

You shall have kisses three.”
Ah, dear Rinaldo!

Rinaldo mounts the staircase,
A goodly knight, I ween,
With shoulders broad and slender waist,
Fair hair and blue eyes keen.
Earth holds no youth more gifted
In every knightly measure;
When Erembors beholds him,
She weeps with very pleasure.
Ah, dear Rinaldo!

Rinaldo in the turret
Upon a couch reposes,
Where deftly limned are mimic wreaths
Of violets and of roses.
Fair Erembors beside him
Sits clasped in loving hold,
And in their eyes and lips they find
The love they vowed of old!
Ah, dear Rinaldo!

In England, although as we have seen (p. 57), the wager of law was the
customary resource of the manorial courts in disputed questions, the shrewd
and intelligent lawyers who were building up and systematizing the practice
of the royal courts were disposed to limit it as much as possible in criminal
cases. Towards the close of the twelfth century, Glanville compiled his
excellent little treatise “De legibus Angliæ,” the first satisfactory body of
legal procedure which the history of mediæval jurisprudence affords.
Complete as this is in all the forms of prosecution and defence, the allusions
to conjurators are so slight as to show that already they were employed
rather on collateral points than on main questions. Thus a defendant who
desired to deny the serving of a writ could swear to its non-reception with
twelve conjurators;195 and a party to a suit, who had made an unfortunate
statement or admission in court, could deny it by bringing forward two to
swear with him against the united recollections and records of the whole

court.196 The custom, however, still maintained its hold on popular
confidence. In 1194, when Richard I. undertook, after his liberation, to
bring about a reconciliation between his chancellor William, Bishop of Ely,
and the Archbishop of York, one of the conditions was that the chancellor
should swear with a hundred priestly compurgators that he had neither
caused nor desired the arrest of the archbishop.197 In the next century
Bracton alludes to the employment of conjurators in cases of disputed
feudal service between a lord and his vassal, wherein the utmost exactness
was rigidly required both as to the number and fitness of the conjurators,198
and we shall see that no formal abrogation of it took place until the
nineteenth century. An outgrowth of the custom, moreover, was the Inquest
of Fame, by which “the general character of the accused, as found by a jury,
was accepted as an indication of the guilt or innocence of the prisoner.”199
Soon after the time of Glanville, the system of compurgation received a
severe shock from its most important patron, the church. As stated above, in
proceedings between ecclesiastics, it was everywhere received as the
appropriate mode of deciding doubtful cases. At the same time the absolute
character of the compurgatorial oath was too strong an incentive to perjury,
ignorant or wilful, for conscientious minds to reconcile themselves to the
practice, and efforts commenced to modify it. About 1130 Innocent II., in
prescribing compurgation for the Bishop of Trent, accused of simony,
orders that the oath of the conjurators shall be simply as to their belief in the
bishop’s oath.200 Gratian inserted this in his Decretum, and a commentator
soon afterwards speaks of it as an opinion held by some authorities.201 It
was reserved for Innocent III. to give this the full sanction of law as a
general regulation. Compurgation was too valuable a resource for
churchmen to be discarded, and he endeavored to check the abuses to which
it led, by demanding conjurators of good character, whose intimacy with the

accused would give weight to their oaths.202 At the same time, in
endeavoring to remove one of the objections to its use, he in reality
destroyed one of its principal titles to respect, for in decreeing that
compurgators should only be obliged to swear to their belief in the truth of
the principal’s oath,203 he attacked the very foundation of the practice, and
gave a powerful impulse to the tendency of the times no longer to consider
the compurgator as sharing the guilt or innocence of the accused. Such an
innovation could only be regarded as withdrawing the guarantee which had
immemorially existed. To recognize it as a legal precept was to deprive the
proceeding of its solemnity and to render it no longer a security worthy the
confidence of the people or sufficient to occupy the attention of a court of
justice.
In the confusion arising from the long and varying contest as to the
boundaries of civil and ecclesiastical jurisdiction, it is not easy to determine
the exact influence which this decretal may have exercised directly in
secular jurisprudence. We have seen above that the ancient form of absolute
oath was still employed without change until long after this period, but the
moral effect of so decided a declaration from the head of the Christian
church could not but be great. Another influence, not less potent, was also
at work. The revival of the study of the Roman jurisprudence, dating from
about the middle of the twelfth century, soon began to exhibit the results
which were to work so profound a change in the legal maxims and
principles of half of Europe.204 The criminal procedure of the Barbarians
had rested to a great degree on the system of negative proofs. In the absence
of positive evidence of guilt, and sometimes in despite of it, the accused
was bound to clear himself by compurgation or by the ordeal. The cooler
and less impassioned justice of the Roman law saw clearly the futility of
such attempts, and its system was based on the indisputable maxim that it is
morally impossible to prove a negative—unless, indeed, that negative
should chance to be incompatible with some affirmative susceptible of
evidence—and thus the onus of proof was thrown upon the accuser.205 The
civil lawyers were not long in recognizing the truth of this principle, and in
proclaiming it far and wide. The Spanish code of Alfonso the Wise, in the
middle of the thirteenth century, asserts it in almost the same words as the
Roman jurisconsult.206 Not long before, the Assises de Jerusalem had
unequivocally declared that “nul ne peut faire preuve de non;” and

Beaumanoir, in the Coutumes du Beauvoisis, approvingly quotes the
assertion of the civil doctors to the same effect, “Li clerc si dient et il dient
voir, que negative ne doit pas quevir en proeve.”
Abstract principles, however, though freely admitted, were not yet
powerful enough to eradicate traditional customs rooted deeply in the
feelings and prejudices of the age. The three bodies of law just cited
contradict their own admissions, in retaining with more or less
completeness the most monstrous of negative proofs—the ordeal of battle—
and the introduction of torture soon after exposed the accused to the
chances of the negative system in its most atrocious form. Still these codes
show a marked progress as relates to the kindred procedure of
compurgation. The Partidas, promulgated about 1262, record the
convictions of an enlightened ruler as to what should be law rather than the
existing institutions of a people, and were not accepted as authoritative until
the middle of the fourteenth century. The absence of compurgation in Spain,
moreover, was a direct legacy from the Wisigothic code, transmitted in
regular descent through the Fuero Juzgo.207 The Assises de Jerusalem is a
more precious relic of mediæval jurisprudence. Constructed as a code for
the government of the Latin kingdoms of the East, in 1099, by order of
Godfrey of Bouillon, it has reached us only in the form assumed about the
period under consideration, and as it presents the combined experience of
the warriors of many Western races, its silence on the subject of conjurators
is not a little significant. The work of Beaumanoir, written in 1283, is not
only the most perfect embodiment of the French jurisprudence of his time,
but is peculiarly interesting as a landmark in the struggle between the
waning power of feudalism and the Roman theories which gave intensity of
purpose to the enlightened centralization aimed at by St. Louis: and
Beaumanoir likewise passes in silence over the practice of compurgation, as
though it were no longer an existing institution. All these legislators and
lawyers had been preceded by the Emperor Frederic II., who, in 1231,
promulgated his “Constitutiones Sicularum” for the government of his
Neapolitan provinces. Frederic was Latin, and not Teutonic, both by
education and predilection, and his system of jurisprudence is greatly in
advance of all that had preceded it. That conjurators should find no place in
his scheme of legal procedure is, therefore, only what might be expected.
The collection of laws known as the Êtablissements of St. Louis is by no

means a complete code, but it is sufficiently copious to render the absence
of all allusion to compurgation significant. In fact, the numerous references
to the Digest show how strong was the desire to substitute the Roman for
the customary law, and the efforts of the king to do away with all negative
proofs of course included the one under consideration. The same may be
said of the Livres de Jostice et de Plet and the Conseil of Pierre de
Fontaines, two unofficial books of practice, which represent with tolerable
fulness the procedures in vogue during the latter half of the thirteenth
century; while the Olim, or records of the Parlement of Paris, the king’s
high court of justice, show that the same principles were kept in view in the
long struggle by which that body succeeded in extending the royal
jurisdiction at the expense of the independence of the vainly resisting
feudatories. In the Olim from 1254 to 1318, I can find but two instances in
which compurgation was required—one in 1279 at Noyon, and one in 1284
at Compiègne. As innumerable decisions are given of cases in which its
employment would have been equally appropriate, these two can only be
regarded as exceptional, and the inference is fair that some local custom
rendered it impossible to refuse the privilege on these special occasions.208
All these were the works of men deeply imbued with the spirit of the
resuscitated jurisconsults of Rome. Their labors bear testimony rather to the
influences tending to overthrow the institutions bequeathed by the
Barbarians to the Middle Ages, than to a general acceptance of the
innovations attempted. Their authority was still circumscribed by the
innumerable jurisdictions which yet defied their gradual encroachments and
resolutely maintained ancestral customs. Thus, in 1250, we find in the
settlement of a quarrel between Hugues Tirel Seigneur of Poix in Picardy
and the commune of that place, that one of the articles was to the effect that
the mayor with thirty-nine of the bourgeois should kneel before the dame de
Poix and offer to swear that an insult inflicted on her had not been done, or
that if it had, it had been in honor of the Seigneur de Poix.209 Even an
occasional instance may be found where the central power itself permitted
the use of compurgation, showing how difficult it was to eradicate the
prejudices transmitted through ages from father to son, and that the policy
adopted by St. Louis and Philippe le Bel, aided by the shrewd and energetic
civil lawyers who assisted them so ably, was not in all cases adhered to.
Thus, in 1283, when the bailli of Amiens was accused before the Parlement

of Paris of having invaded the privileges of the church by trying three clerks
accused of crime, it was decided that he should swear with six
compurgators as to his ignorance that the criminals were ecclesiastics.210
So, in 1303, a powerful noble of the court of Philippe le Bel was accused of
a foul and treacherous murder, which a brother of the victim offered to
prove by the wager of battle. Philippe was endeavoring to abolish the
judicial duel, and the accused desired strongly to escape that ordeal. He was
accordingly condemned to clear himself of the imputed crime by a
purgatorial oath with ninety-nine nobles, and at the same time to satisfy the
fraternal claim of vengeance with an enormous fine211—a decision which
offers the best practical commentary on the degree of faith reposed in this
system of purgation. Even the Parlement of Paris in 1353 and a rescript of
Charles le Sage in 1357 allude to compurgation as still in use and of binding
force.212
It was in the provinces, however, that the system manifested its greatest
vitality, protected both by the stubborn dislike to innovation and by the
spirit of independence which so long and so bitterly resisted the centralizing
efforts of the crown. The Roman law concentrated all power in the person
of the sovereign, and reduced his subjects to one common level of implicit
obedience. The genius of the barbaric institutions and of feudalism
localized power. The principles were essentially oppugnant, and the contest
between them was prolonged and confused, for neither party could in all
cases recognize the ultimate result of the minuter points involved, though
each was fully alive to the broad issues of the struggle.
How obstinate was the attachment to bygone forms may be understood
when we see even the comparatively precocious civilization of a city like
Lille preserve the compurgatorial oath as a regular procedure until the
middle of the fourteenth century, even though the progress of enlightenment
had long rendered it a mere formality, without serious meaning. Until the
year 1351, the defendant in a civil suit was obliged to substantiate the oath
of denial with two conjurators of the same sex, who swore to its truth, to the
best of their belief.213 The minutest regulations were enforced as to this
ceremony, the position of every finger being determined by law, and though
it was the veriest formality, serving merely as an introduction to the taking

of testimony and the legal examination of the case, yet the slightest error
committed by either party lost him the suit irrecoverably.214
Normandy was even more faithful to the letter of the ancient traditions.
The Coutumier in use until the revision of 1583 under Henry III. retains a
remnant of the practice under the name of desrene, by which, in questions
of little moment, a man could rebut an accusation with two or four
compurgators, even when it was sustained by witnesses. The form of
procedure was identical with that of old, and the oath, as we have already
seen (page 58), was an unqualified assertion of the truth of that of the
accused.215 Practically, however, we may assume that the custom had
become obsolete, for the letters patent of Henry III., ordering the revision in
1577, expressly state that the provisions of the existing laws “estoient la
pluspart hors d’usage et peu ou point entendu des habitants du pays;” and
that compurgation was one of the forgotten formulas may fairly be inferred
from the fact that Pasquier, writing previous to 1584, speaks of it as
altogether a matter of the past.216
The fierce mountaineers of Béarn were comparatively inaccessible to the
innovating spirit of the age, and preserved their feudal independence amid
the progress and reform of the sixteenth century long after it had become
obsolete elsewhere throughout Southern Europe. Accordingly, we find the
practice of compurgation maintained as a regular form of procedure in the
latest revision of their code, made by Henry II. of Navarre in 1551, which
continued in force until the eighteenth century.217 The influence of the age
is shown, however, even there, in a modification of the oath, which is no
longer an unreserved confirmation of the principal, but a mere affirmation
of belief.218
In Castile, a revival of the custom is to be found in the code compiled by
Pedro the Cruel, in 1356, by which, in certain cases, the defendant was
allowed to prove his innocence with the oath of eleven hidalgos.219 This,
however, is so much in opposition to the principles of the Partidas, which
had but a few years previous been accepted as the law of the land, and is so
contrary to the spirit of the Ordenamiento de Alcalà, which continued in
force until the fifteenth century, that it can only be regarded as a tentative
resuscitation of mere temporary validity.

The Northern races resisted more obdurately the advances of the reviving
influence of the Roman law. Though we have seen Frederic II. omitting all
notice of compurgation in the code prepared for his Neapolitan dominions
in 1231, he did not attempt to abrogate it among his German subjects, for it
is alluded to in a charter granted to the city of Regensburg in 1230.220 The
Schwabenspiegel, which during the thirteenth and fourteenth centuries was
the municipal law of Southern Germany, directs the employment of
conjurators in various classes of actions which do not admit of direct
testimony.221 The code in force in Northern Germany, as we have already
seen, gave great facilities for rebutting accusations by the single oath of the
defendant, and therefore the use of conjurators is but rarely referred to in
the Sachsenspiegel, though it was not unknown, for either of the parties to a
judicial duel could refuse the combat by procuring six conjurators to swear
with him that he was related to his antagonist.222 In the Saxon burgher law,
however, the practice is frequently alluded to, and it would seem from
various passages that a man of good character who could get six others to
take with him the oath of denial was not easily convicted. But where there
was satisfactory proof, compurgation was not allowed, and in homicide
cases, if a relative of the slain decided to proceed by the duel, his claim of
vengeance was supreme, and no other process was admissible.223 It is
evident, however, that compurgation retained its hold on popular respect
when we see, about 1300, the Emperor Albert I. substituting it for the duel
in a considerable class of criminal cases.224 In the early part of the sixteenth
century, Maximilian I. did much to diminish the use of the compurgatorial
procedure,225 but that he failed to eradicate it entirely is evident from a
constitution issued by Charles V. in 1548, wherein its employment is
enjoined in doubtful cases in a manner to show that it was an existing
resource of the law, and that it retained its hold upon public confidence,
although the conjurators were only required to swear as to their belief in the
oath of their principal.226
In the Netherlands it likewise maintained its position. Damhouder,
writing in 1554, after describing its employment in the Courts Christian,
adds that by their example it was occasionally used also in secular
tribunals.227

In Scotland, as late as the middle of the fourteenth century, its existence
is proved by a statute which provides that if a thief escaped from
confinement, the lord of the prison should clear himself of complicity with
the evasion by the oaths of thirty conjurators, of whom three were required
to be nobles.228
The Scandinavian nations adhered to the custom with even greater
tenacity. In the code of Haco Haconsen, issued towards the close of the
thirteenth century, it appears as the basis of defensive procedure in almost
all criminal cases, and even in civil suits its employment is not infrequently
directed, the number of conjurators being proportioned to the nature of the
crime or to the amount at stake, and regulations for administering the oath
being given with much minuteness.229 In Denmark it was not abolished
until near the middle of the seventeenth century, under Christiern IV., after
it had become a crying abuse through the habit of members of families, and
even of whole guilds, entering into formal engagements to support each
other in this manner.230 The exact date of its abrogation is a matter of
uncertainty, and the stubbornness with which the people clung to it is shown
by the fact that even in 1683 Christiern V., in promulgating a new code,
found it necessary formally to prohibit accused persons from being forced
to provide conjurators.231 In Sweden, its existence was similarly prolonged.
Directions for its use are contained in the code which was in force until the
seventeenth century;232 it is constantly alluded to in the laws of Gustavus
Adolphus;233 and an edict of Charles XI. in 1662 reproves the readiness
with which men were everywhere prompt to serve as compurgators, and
requires the judges, before admitting them, to investigate whether they are
proper persons and what are their reasons to believe in the innocence of
their principal.234 By this time, therefore, though not yet witnesses, they
were becoming assimilated to them.
The vitality of communal societies among the Slavs naturally led to the
maintenance of a custom which drew its origin from the solidarity of
families, and it is therefore not surprising to find it in Poland described as in
full force as late as the eighteenth century, the defendant being obliged to
support his purgatorial oath with conjurators, who swore as to its truth.235
Yet among the Poles confidence in it as a legal proof had long been
undermined. In 1368 Casimir III. decreed that a man of good repute, when

accused of theft, could clear himself by his own oath; but if his character
was doubtful, and compurgation was prescribed, then if he fell short by one
conjurator of the number required, he should satisfy the accuser, though he
should not be rendered infamous for the future. This led to an increase of
crime, and a hundred years later Casimir IV. proclaimed a law by which
compurgation was only allowed three times, after which a persistent
offender was abandoned to the full severity of the law, as being presumably
guilty and not deserving of escape. At the same time any one summoned to
compurgation, and appearing before the judge without compurgators, was
ipso facto pronounced infamous. From a case recorded it would appear that
twelve conjurators were required to outweigh the single oath of the
accuser.236 Among the southern Slavs the custom was likewise preserved to
a comparatively late date. An edict of Hermann, Ban of Slavonia, in 1416,
orders that any noble accused of neglect to enforce a decree of proscription
against a malefactor, should purge himself with five of his peers as
conjurators, in default of which he was subject to a fine of twenty marcs.237
The constitutional reverence of the Englishman for established forms and
customs, however, nominally preserved this relic of barbarism in the
common law to a period later by far than its disappearance from the codes
of other nations. The system of inquests and ordeals established by the
Assize of Clarendon in 1166 and the rise of the jury system led to its being
superseded in criminal matters, but in civil suits it held its own. According
to Bracton, in the thirteenth century, in all actions arising from contracts,
sales, donations, etc., when there was no absolute proof, the plaintiff came
into court with his secta, and the defendant was bound to produce two
conjurators for each one advanced by the plaintiff, the evidence apparently
preponderating according to quantity rather than quality.238 From the
context, it would appear that the secta of the plaintiff consisted of his
friends and followers willing to take the oath with him, but not absolutely
witnesses. The Fleta, however, some twenty-five years later, uses the term
in the sense of witnesses, and in actions of debt directs the defence to be
made with conjurators double in number the plaintiff’s witnesses,239 thus
offering an immense premium on dishonesty and perjury. Notwithstanding
this, the nobles and gentry who came to London to attend the court and
Parliament apparently were subjected to many annoyances by the citizens
who strove to collect their debts, and in 1363 Edward III. relieved them by

abrogating the wholesome rule laid down by Bracton, and enacting that a
debtor could wage his law with a sufficient number of conjurators in spite
of any papers put forward in evidence by the creditor, who is curtly told to
find his remedy in some other way.240 The unquestionable advantages
which this offered to not the least influential part of a feudal community
probably had something to do with its preservation. The “Termes de la
Ley,” compiled in the early part of the sixteenth century, states as the
existing practice that “when one shall wage his law, he shall bring with him
6, 8, or 12 of his neighbors, as the court shall assign him, to swear with
him;” and when in a statute of 1585 imposing severe fines for using wood
or charcoal in iron manufacture it is provided that offenders shall not be
entitled to defence by the wager of law, it shows that proceeding to be still
in common use, though it was recognized as a means of eluding justice.241
Style’s “Practical Register,” published in 1657, also describes the process,
but an absurd mistake as to the meaning of the traditional expression “jurare
manu” shows that the matter was rather a legal curiosity than a procedure in
ordinary use; and, indeed, the author expressly states that the practice
having been “abused by the iniquity of the people, the law was forced to
find out another way to do justice to the nation.” Still the law remained
unaltered, and a case is recorded occurring in 1708, known as Gunner’s
case, where “the plaintiff became nonsuit, when the defendant was ready to
perfect his law,”242 and Jacob, in his “Review of the Statutes,” published
not long after, treats of it as still part of the existing judicial processes. As
the wager of law came to be limited to simple actions of debt, shrewd
lawyers found means of avoiding it by actions of “trespass upon the case,”
and other indirect forms which required the intervention of a jury, but Burn
in his Law Dictionary (Dublin, 1792) describes the whole process with all
its forms as still existing, and in 1799 a case occurred in which a defendant
successfully eluded the payment of a claim by producing compurgators who
“each held up his right hand, and then laid their hands upon the book and
swore that they believed what the defendant swore was true.” The court
endeavored to prevent this injustice, but was forced to accept the law of the
land. Even this did not provoke a change. In 1824, in the case of King v.
Williams (2 Barnewell & Cresswell, 528), some black-letter lawyer revived
the forgotten iniquity for the benefit of a client in want of testimony, and
demanded that the court should prescribe the number of conjurators
necessary for the defence, but the court refused assistance, desiring to give

the plaintiff the benefit of any mistake that might be made. Williams then
got together eleven conjurators, and appeared in court with them at his
back, when the plaintiff, recognizing the futility of any further proceedings,
abandoned his case in disgust.243 Still, the fine reverential spirit postponed
the inevitable innovation, and it was not until 1833 that the wager of law
was formally abrogated by 3 and 4 William IV., c. 42, s. 13.244
English colonists carried the ancestral custom across the sea and seem to
have resorted to it as an infallible mode of settling certain cases for which
no positive evidence could be had. Small as was the infant colony of
Bermuda, its court records for a little more than six months show four
instances of its use, all of which occur in deciding cases of “suspition of
incontinency” regularly presented by the grand jury or the ecclesiastical
authorities.245
Doubtless if the early records of Virginia and Massachusetts could be
searched similar evidence of its use would be found in them. Indeed it is
quite possible that, strictly speaking, the wager of law may still preserve a
legal existence in this country. In 1712 an act of the Colony of South
Carolina, enumerating the English laws to be held as in force there,
specifically includes those relating to this mode of defence, and I am not
aware that they have ever been formally abrogated.246 In 1811 Chancellor
Kilty, of Maryland, speaks of the wager of law as being totally disused in
consequence of the avoidance of the forms of suit which might admit of its
employment, but he evidently regards it as not then specifically
abolished.247

While the common sense of mankind was gradually eliminating the
practice from among the recognized procedures of secular tribunals, the
immutable nature of ecclesiastical observances prolonged its vitality in the
bosom of the church. We have seen above that Innocent III., about the
commencement of the thirteenth century, altered the form of oath from an
unqualified confirmation to a mere assertion of belief in the innocence of
the accused. That this at once became the standard formula in ecclesiastical
cases is probable when we find it adopted for the oaths of the compurgators

who, during the Albigensian persecution, were required by the nascent
Inquisition in all cases to assist in the purgation of such suspected heretics
as were allowed to escape so easily.248 And this is no doubt the “congruous
purgation” to which Innocent III. and Gregory IX. alluded as that by which
suspected heretics should clear themselves.249 Zealous inquisitors, however,
paid little attention to such forms which allowed their victims a chance of
escape, for it is related of Conrad of Marburg, who for a short time spread
terror and desolation throughout Germany, that when the accused confessed
he subjected them to torture and the frightful penance provided by the
church, but that when they denied their guilt he sent them at once to the
stake. The compurgatorial process, however, vindicated itself in a notable
manner when Conrad’s cruelties at length aroused effective opposition.
Count Sayn, whom he had accused, was virtually acquitted at the Council
of Mainz, July, 1233, soon after which Conrad was assassinated: the count,
however, required formal vindication, and at the Diet of Frankfort, in
February, 1234, he cleared himself of the charge of heresy in the most
imposing manner with a train of compurgators comprising eight bishops,
twelve Cistercian abbots, twelve Franciscan and three Dominican monks,
and a number of Benedictine abbots, clergy, and noble laymen. After this, in
April, the Council of Mainz declared him and others of Conrad’s victims to
be innocent and to be restored to reputation and to their possessions.250
The practice of compurgation thus introduced at the foundation of the
Inquisition was maintained to the last by that terrible tribunal. “Our holy
mother church,” says Simancas, Bishop of Badajos, a writer of the sixteenth
century, “can in no way endure the suspicion of heresy, but seeks by various
remedies to cure the suspect. Sometimes she forces them to abjure or to
purge themselves; sometimes she elicits the truth by torture, and very often
she coerces them with extraordinary punishments.” Therefore, any one
whose orthodoxy was doubtful, if he was unwilling to clear himself, at the
command of the judge, was held to be convicted of heresy. By the secular
law he had a year’s grace before condemnation, but under the ecclesiastical
law he was instantly punishable.251
Canonical purgation, according to the rules of the Inquisition, was
indicated when public report rendered a man suspected and there was no
tangible evidence against him. The number of compurgators was left to the

discretion of the judge, who at the same time decided whether the
deficiency of one, two, or more would amount to a condemnation. They
were to be peers of the accused; and though he was allowed to select them,
yet the qualification that they were to be good men and orthodox practically
left their nomination to the officials—even as the customary accusation by
the promotor-fiscal was held to be in itself the requisite amount of suspicion
required as a condition precedent for the trial. The greater the suspicion,
however, the larger was the number of compurgators to be adduced.
When the accused had chosen his men, and they were accepted by the
judge, they were summoned, and each one examined separately by the
Inquisitors as to his acquaintance with the defendant—a process by which,
it may readily be conceived, the terrors of the Holy Office might easily be
so used as to render them extremely unwilling to become his sponsors.
They were then assembled together; the accused was brought in, the charge
against him was read, and he took an oath denying it. Each conjurator was
then taken separately and sworn as to his belief in the truth or falsity of the
oath of denegation, and according as they expressed their conviction of the
veracity of the accused the sentence was usually rendered, absolving or
condemning him.
No process of administering compurgation can well be conceived more
shrewdly adapted to reduce to a minimum the chances of acquittal, or to
leave the result subject to the wishes of the officials. The testimony of the
doctors of law, both civil and canon, accordingly was that it was blind,
deceitful, and perilous.252 In fact, it is easy to conceive of the difficulty of
finding five, or nine, or eleven men willing to risk their lives and families
by standing up in support of any one who had fallen into the grasp of the
Holy Office. The terrible apprehension which the Inquisition spread abroad
among all classes, and the dread which every man felt of being suspected
and seized as an accomplice of heresy, are unconsciously intimated by
Simancas when, arguing against this mode of trial, he observes that “the
morals of mankind are so corrupt at the present day, and Christian charity
has grown so cold, that it is almost impossible to find any one willing to
join in clearing his neighbor, or who does not easily believe the worst of
him and construe all doubtful things against him. When it is enough for the
condemnation of the accused that the compurgators shall declare that they
are ignorant or doubtful as to his innocence, who is there that will not

express doubt when they know that he would not have been condemned to
purge himself if he had not been violently suspected?” For these reasons he
says that those of Moorish or Jewish stock should never be subjected to it,
for it is almost impossible not to think ill of them, and, therefore, to send
them to purgation is simply to send them to the stake.253
For all this, there was a lively discussion in the time of Simancas,
whether if the accused succeeded in thus clearing himself, it was sufficient
for acquittal. Many Inquisitors, indeed, held to the older practice that the
accused should first be tortured, when if no confession could be forced from
him he was put on his purgation; if he passed safely through this, he was
then made to abjure the errors of which he had not been convicted, and after
all this he was punished at the discretion of the judge.254 Such an
accumulation of injustice seems incredible, and yet Simancas feels himself
obliged to enter into an elaborate discussion to prove its impropriety.
In countries where the Inquisition had not infected society and destroyed
all feeling of sympathy between man and man this process of purgation was
not impossible. Thus, in 1527, during one of the early persecutions of the
reformers under Henry VIII., while numbers were convicted, two women,
Margaret Cowbridge and Margery Bowgas, were allowed to clear
themselves by compurgators, though there were several positive witnesses
against them. It is also noteworthy that in these cases a portion of the
compurgators were women.255
In the regular ecclesiastical courts the practice was maintained. When the
Council of Constance, in its futile efforts at reformation, prepared an
elaborate code of discipline, it proposed strenuous regulations to correct the
all-pervading vice of simony. To prevent the sale of benefices this project of
law decreed deprivation of all preferment as the punishment for such
offences, and as transactions of the kind were commonly accomplished in
secret, it ordained that common report should be sufficient for conviction;
yet it nullified the regulation by permitting the accused to clear himself by
canonical purgation.256 Towards the close of the fifteenth century, Angelo
da Chiavasco describes it as customary where there is no formal accuser
and yet public rumor requires action, although the judge can also order it in
cases of accusation: if the defendant fails of his purgation in the latter case
he is to be punished as provided for his crime; if there is only rumor, then

CHAPTER VIII.
ACCUSATORIAL CONJURATORS.

Though not strictly a portion of our subject, the question is not without
interest as to the power or obligation of the plaintiff or accuser to fortify his
case with conjurators. There is little evidence of such a custom in primitive
times, but one or two allusions to it in the Leges Barbarorum show that it
was occasionally practised. Some of the earlier texts of the Salic law
contain a section providing that in certain cases the complainant shall
sustain his action with a number of conjurators varying with the amount at
stake; a larger number is required of the defendant in reply; and it is
presumable that the judges weighed the probabilities on either side and
rendered a decision accordingly.263 As this is omitted in the later revisions
of the law, it probably was not widely practised, or regarded as of much
importance. Among the Baioarians, a claimant of an estate produced six
conjurators who took the oath with him, and whose united efforts could be
rebutted by the defendant with a single competent witness.264 These
directions are so precise that there can be no doubt that the custom
prevailed to a limited extent among certain tribes, and a clause in the
Decree of Childebert in 597, providing that the oaths of five or seven
impartial men of good character shall convict a thief or malefactor, would
seem evidently to refer to conjurators and not to witnesses.265 In the treaty
between Childebert and Clotair in 593, an accuser in case of theft is obliged
to give twelve conjurators, half of them selected by himself, to swear that a
theft has really taken place.266 That it was, indeed, more generally
employed than the scanty references to it in the codes would indicate, may
be inferred from one of the ecclesiastical forgeries which Charlemagne was
induced to adopt and promulgate. According to this, no accusation against a
bishop could be successful unless supported by seventy-two witnesses, all
of whom were to be men of good repute; forty-four were required to
substantiate a charge against a priest, thirty-seven in the case of a deacon,
and seven when a member of the inferior grades was implicated.267 Though
styled witnesses in the text, the number required is so large that they
evidently could have been only conjurators, with whom the complainant
supported his oath of accusation, and the fabrication of such a law would

seem to show that the practice of employing such means of substantiating a
charge was familiar to the minds of men.
Among the heathen Northmen, as we have seen, every pleader, whether
plaintiff or defendant, was obliged to take a preliminary oath on the sacred
stalla hringr, or altar ring, duly bathed in the blood of an ox sacrificed for
the purpose. This custom was preserved in England, where the Anglo-Saxon
laws required, except in trivial cases, a “fore-oath” from the accuser (forath,
antejuramentum, præjuramentum), and William the Conqueror, in his
compilation of the laws of Edward the Confessor, shows that this was
sometimes strengthened by requiring the addition of conjurators, who were
in no sense witnesses, since their oath had reference, not to the facts of the
case, but solely to the purity of intention on the part of the accuser.268
Indications of the same procedure are to be found in the collection known
as the laws of Henry I.269 Probably to the development of this may be
attributed the peculiar device of the secta already referred to (p. 84),
consisting of those who supported the plaintiff by their oaths while in no
sense absolute witnesses. They were not even examined unless the
defendant demanded it. The bringing of the secta or suit remained a matter
of form long after the actual production of the witnesses had become
obsolete in the fourteenth century, and it was not finally abolished until
1852.270
In an age of comparative simplicity, it is natural that men should turn
rather to the guarantees of individual character, or to the forms of venerable
superstition, than to the subtleties of legal procedure. Even as the defendant
was expected to produce vouchers of his truthfulness, so might the plaintiff
be equally required to give evidence that his repute among his neighbors
was such as to justify the belief that he would not bring a false charge or
advance an unfounded claim. The two customs appear to arise from the
same process of reasoning and to be identical in spirit, leading to a contest
between the two parties as to which could bring forward the largest and
most credible number of conjurators, and the position of the accused being
outsworn was a recognized circumstance in jurisprudence. Thus, the
Council of Tribur in 895 provides that in such case he must either confess
or undergo the ordeal.271 In process of time accusatorial conjurators became
commonly used in many places. In Béarn the laws of the thirteenth century

provide that in cases of debt under forty sous, where there was no testimony
on either side, the claimant could substantiate his case by bringing forward
one conjurator, while the defendant could rebut it with two.272 A similar
rule obtained in England in all actions arising from contracts and sales;273
and in the laws of Soest in Westphalia, compiled at the end of the eleventh
or the commencement of the twelfth century, an accusation of homicide
could be proved by six conjurators swearing with the prosecutor, while if
this failed the accused could then clear himself with eleven
compurgators.274 Throughout Germany, in the thirteenth century, we find
the principle of accusing conjurators generally received, as is evident from
the juramentum supermortuum already referred to, and other provisions of
the municipal law.275 So thoroughly, indeed, was this established that, in
some places, in prosecutions for highway robbery, arson, and other crimes,
the accuser had a right to require every individual in court, from the judge
to the spectator, to help him with an oath or to swear that he knew nothing
of the matter, and even the attorney for the defendant was obliged to
undergo the ceremony.276 In Sweden it was likewise in use under the name
of jeff niteed;277 and in the compilation of the laws by Andreas, Archbishop
of Lunden, in the thirteenth century, there is a curious provision for cases of
secret murder by which the accuser could force nine men successively to
undergo the hot-iron ordeal, after which, if thus far unsuccessful, he could
still force a tenth man to trial on producing twelve conjurators to swear to
the guilt of the accused—these conjurators, in case of acquittal, being each
liable to a fine of three marks to the accused and as much to the church.278
In Norway and Iceland, in certain cases of imputed crime, the accuser was
bound to produce ten companions, of whom eight appeared simply as
supporters, while two swore that they had heard the offence spoken of, but
that they knew nothing about it of their own knowledge—the amount of
weight attached to which asseveration is shown by the fact that the accused
required only two conjurators to clear himself.279
Perhaps the most careful valuation of the oath of a plaintiff is to be found
in the Coutumier of Bordeaux, which provides that, in civil cases not
exceeding four sols in amount, the claimant should substantiate his case by
an oath on the Gospels in the Mayor’s Court; when from four to twenty sols
were at stake, he was sworn on the altar of St. Projet or St. Antoine; from

twenty sols to fifteen livres, the oath was taken in the cemetery of St.
Seurin, while for amounts above that sum it was administered on the “Fort”
or altar of St. Seurin himself. Persons whose want of veracity was notorious
were obliged in all cases, however unimportant, to swear on the Fort, and
had moreover to provide a conjurator who with an oath of equal solemnity
asserted his belief in the truth of his companion.280
The custom of supporting an accusatorial oath by conjurators was
maintained in some portions of Europe to a comparatively recent period.
Wachter281 prints a curious account of a trial, occurring in a Suabian court
in 1505, which illustrates this, as well as the weight which was still attached
to the oath of a defendant. A woman accused three men on suspicion of
being concerned in the murder of her husband. They denied the charge, but
when the oath of negation was tendered to them, with the assurance that, if
they were Suabians, it would acquit them, they demanded time for
consideration. Then the advocate of the widow stepped forward to offer the
oath of accusation, and two conjurators being found willing to support him
the accused were condemned without further examination on either side. A
similar process was observed in the Vehmgericht, or Court of the Free
Judges of Westphalia, whose jurisdiction in the fourteenth and fifteenth
centuries became extended over the whole of Germany. Accusations were
supported by conjurators, and when the defendant was a Frei-graff, or
presiding officer of a tribunal, the complainant was obliged to procure
seven Frei-schöppen, or free judges, to take the accusatorial oath with
him.282
The latest indication that I have met with of established legal provisions
of this nature occurs in the custom of Britanny, as revised in 1539. By this,
a man claiming compensation for property taken away is to be believed on
oath as to his statement of its value, provided he can procure companions
worthy of credence to depose “qu’ils croyent que le jureur ait fait bon et
loyal serment.”283 Even this last vestige disappears in the revision of the
Coutumier made by order of Henry III. in 1580.

II.
THE WAGER OF BATTLE.
CHAPTER I.

When man is emerging from barbarism, the struggle between the rising
power of reason and the waning supremacy of brute force is full of
instruction. Wise in our generation, we laugh at the inconsistencies of our
forefathers, which, rightly considered as portions of the great cycle of
human progress, are rather to be respected as trophies of the silent victory,
won by almost imperceptible gradations. When, therefore, in the dark ages,
we find the administration of justice so strangely interrupted by appeals to
the sword or to chance, dignified under the forms of Christianized
superstition, we should remember that even this is an improvement on the
all-pervading first law of violence. We should not wonder that barbarous
tribes require to be enticed to the acknowledgment of abstract right through
pathways which, though devious, may reach the goal at last. When the
strong man is brought, by whatever means, to yield to the weak, a great
conquest is gained over human nature; and if the aid of superstition is
invoked to decide the struggle, it is idle for us, while enjoying the result, to
contemn the means which the weakness of human nature has rendered
necessary to the end. With uneducated nations, as with uneducated men,
sentiment is stronger than reason, and sacrifices will be made for the one
which are refused to the other. If, therefore, the fierce warrior, resolute to
maintain an injustice or a usurpation, can be brought to submit his claim to
the chances of an equal combat or of an ordeal, he has already taken a vast
step towards acknowledging the supremacy of right and abandoning the
personal independence which is incompatible with the relations of human
society. It is by such indirect means that individuals, each relying on his
own right hand, have been gradually led to endure regular forms of
government, and to cherish the abstract idea of justice as indispensable
between man and man. Viewed in this light, the ancient forms of procedure
lose their ludicrous aspect, and we contemplate their whimsical admixture
of force, faith, and reason, as we might the first rude engine of Watt, or the

“Clermont,” which painfully labored in the waters of the Hudson—clumsy
and rough it is true, yet venerable as the origin and prognostic of future
triumphs.

There is a natural tendency in the human mind to cast the burden of its
doubts upon a higher power, and to relieve itself from the effort of decision
by seeking in the unknown the solution of its difficulties. Between the fetish
worshippers of Congo and the polished sceptics who frequented the salon
of Mlle. le Normant, the distance, though great, is bridged over by this
common weakness; and whether the information sought be of the past or of
the future, the impulse is the same. When, therefore, in the primitive
mallum, the wisdom of the rachinborgs was at fault, and the absence or
equal balance of testimony rendered a verdict difficult, what was more
natural than to appeal for a decision to the powers above, and to leave the
matter to the judgment of God?284 Nor, with the warlike instincts of the
race, is it surprising that this appeal should be made to the God of battles, to
whom, whether they addressed him as Odin or Sabaoth, they looked in
every case for a special interposition in favor of innocence. The curious
mingling of procedure, in these untutored seekings after justice, is well
illustrated in a form of process prescribed by the primitive Bavarian law. A
man comes into court with six conjurators to claim an estate; the possessor
defends his right with a single witness, who must be a landholder of the
vicinage. The claimant then attacks the veracity of the witness—“Thou hast
lied against me. Grant me the single combat, and let God make manifest
whether thou hast sworn truth or falsehood;”285 and, according to the event
of the duel is the decision as to the truthfulness of the witness and the
ownership of the property.

In discussing the judicial combat, it is important to keep in view the wide
distinction between the wager of battle as a judicial institution, and the
custom of duelling which has obtained with more or less regularity among
all races and at all ages. When the Horatii met the Curiatii, or when Antony

challenged Octavius to decide the empire of the world with their two
swords, or when Edward III. in 1340 proposed to Philippe de Valois to
settle their rival claims to the heritage of France army to army, a hundred to
a hundred, or body to body,286 or when the ancient Hindus were in the habit
of averting the carnage of battles in the same manner287—these were simply
expedients to save the unnecessary effusion of blood, or to gratify
individual hate. When the raffiné of the times of Henri Quatre, or the
modern fire-eater, has wiped out some imaginary stain in the blood of his
antagonist, the duel thus fought, though bearing a somewhat closer analogy
to the judicial combat, is not derived from it, but from the right of private
vengeance which was common to all the barbarian tribes, and from the
cognate right of private warfare which was the exclusive privilege of the
gentry during the feudal period.288 The established euphuistic formula of
demanding “the satisfaction of a gentleman,” thus designates both the
object of the custom and its origin. The abolition of private wars gave a
stimulus to the duel at nearly the period when the judicial combat fell
gradually into desuetude. The one thus succeeded to the other, and, being
kindred in form, it is not surprising that for a time there was some confusion
in the minds of men respecting their distinctive characteristics. Yet it is not
difficult to draw the line between them. The object of the one was
vengeance and reparation; the theory of the other was the discovery of truth
and the impartial ministration of justice.
It is easy to multiply examples illustrating this. John van Arckel, a knight
of Holland, followed Godfrey of Bouillon to the first crusade. When some
German forces joined the army, a Tyrolese noble, seeing van Arckel’s arms
displayed before his tent, and recognizing them as identical with his own,
ordered them torn down. The insult was flagrant, but the injured knight
sought no immediate satisfaction for his honor. He laid the case before the
chiefs of the crusade as a judicial matter; an examination was made, and
both parties proved their ancestral right to the same bearings. To decide the
conflicting and incompatible pretensions, the judges ordered the judicial
combat, in which van Arckel deprived his antagonist of life and quarterings
together, and vindicated his claim to the argent 2 bars gules, which in
gratitude to Heaven he bore for eight long years in Palestine. This was not a
quarrel on a punctilio, nor a mode of obtaining redress for an insult, but an
examination into a legal question which admitted of no other solution

according to the manners of the age.289 When, after the Sicilian Vespers, the
wily Charles of Anjou was sorely pressed by his victorious rival Pedro III.
of Aragon, and desired to gain time in order to repress a threatened
insurrection among his peninsular subjects, he sent a herald to Don Pedro to
accuse him of bad faith in having commenced the war without defiance.
The fiery Catalan fell into the snare, and in order to clear himself of the
charge, which was not ill-founded, he offered to meet his accuser in combat
and determine their rights to the Sicilian throne. The terms were laboriously
settled by six representatives of each king and were signed by the principals
December 26, 1282; they were to meet, with a hundred knights on each
side, June 1, 1283, in the neutral territory of Bordeaux and fight it out in the
presence of Edward I. of England or of his deputy, and each swore that if he
failed to be present he would forever hold himself as false and perjured and
deprived of the royal station and dignity. When Charles applied to his
cousin Edward to grant the champ-clos the latter emphatically replied that
for the crowns of the Two Sicilies he would not be judge in such a combat;
Martin II. chimed in with a bull forbidding him to serve, and the combat
never took place, Charles of Anjou having obtained his purpose in the
intervening suspension of arms.290 Nothing more picturesquely romantic is
to be found in the annals of chivalry than Muntaner’s relation of Don
Pedro’s secret ride to Bordeaux and his appearance on the day appointed in
the lists where Edward’s seneschal was unable to guarantee him a fair
field.291 So the challenge which Richard II., in 1383, sent to Charles VI.
wore the aspect of the judicial duel to decide their claims to the realms of
France under the judgment of God.292 Though practically these challenges
may differ little from that of Antony, still their form and purport were those
of the judicial duel in civil or criminal cases. So, when Charles V. offered to
maintain in single combat the charge that Francis I. had villainously
forfeited his faith in disregarding the treaty of Madrid, and Francis hotly
replied with a demand for a secure field in which to defend his honor, the
challenge and its acceptance wore the form of the judicial duel to decide the
question of guilt; although Charles in appointing the Bidasoa as the place of
meeting gave as his reasons the avoidance of bloodshed and the ending of
the war as well as the maintenance of his just cause.293 The celebrated duel,
fought in 1547, between Jarnac and La Chastaigneraye, so piteously
deplored by honest old Brantôme, shows the distinction maintained to the

last. It was conducted with all judicial ceremonies, in presence of Henry II.,
not to settle a point of honor, but to justify Jarnac from a disgusting
accusation brought by his adversary. Resulting most unexpectedly in the
death of La Chastaigneraye, who was a favorite of the king, the monarch
was induced to put an end to all legalized combats, though the illegal
practice of the private duel not only continued to flourish, but increased
beyond all precedent during the succeeding half century—Henry IV. having
granted in twenty-two years no less than seven thousand letters of pardon
for duels fought in contravention of the royal edicts. Such a mode of
obtaining “satisfaction” is so repugnant to the spirit of our age that it is
perhaps not to be wondered at if its advocates should endeavor to affiliate it
upon the ancient wager of battle. Both relics of barbarism, it is true, are
developments from the same primitive habits and customs, yet they are
essentially distinct and have coexisted as separate institutions; and, however
much occasionally intermingled by the passions of periods of violence, they
were practised for different ends, and were conducted with different forms
of procedure. We have only to deal with the combat as a strictly judicial
process, and shall, therefore, leave untouched the vast harvest of curious
anecdote afforded by the monomachial propensities of modern times.

CHAPTER II.
ORIGIN OF THE JUDICIAL DUEL.

The mediæval panegyrists of the wager of battle sought to strengthen its
title to respect by affirming that it was as old as the human race, and that
Cain and Abel, unable to settle their conflicting claims in any other mode,
agreed to leave the decision to the chances of the duel; while the combat
between David and Goliath was considered by the early schoolmen as an
unanswerable proof of the favor with which God regarded such encounters.
Leaving such speculations aside, it is enough for us to know that all the
tribes which settled in Europe practised the combat with so general a
unanimity that its origin must be sought at a period anterior to their
separation from the common stock, although it has left no definite traces in
the written records which have reached us of the Asiatic Aryans.294
That some vague notions of Divine justice making itself manifest through
the sword must have existed in prehistoric Hellenic times is apparent from
Homer’s elaborate description of the duel between Menelaus and Paris.
This has all the characteristics of a judicial combat to decide the guilt or
innocence of the claimants for the possession of the fair Helen. A
preliminary sacrifice is offered to Zeus; Hector and Ulysses measure out the
ground; lots are cast to decide which of the antagonists shall have the first
throw of the spear; and the assembled armies put up a prayer to Zeus,
entreating him to send to Hades the guilty one of the two combatants.295
This is not merely a device to put an end to the slaughter of brave warriors
—it is an appeal to Heaven to elicit justice by means of arms.
The Italiote branch of the Aryans affords us a more definite illustration of
the same belief in the custom of the Umbrians, who settled quarrels by
single combat, and deemed that he who slew his adversary thus proved that
his cause was just.296
Although Cæsar makes no mention of such a custom in Gaul, it evidently
prevailed among the Celtic tribes. Livy describes how some Spaniards
seized the opportunity of a show of gladiators, given by Scipio, to settle
various civil suits by combat, and he proceeds to particularize a case in

which two rival cousins decided in this manner a disputed question in the
law of descent, despite the earnest remonstrances of the Roman
commander.297 Among the Irish Celts, at their appearance in history, we
find the judicial duel established with fixed regulations. In the Senchus
Mor, a code claiming to be compiled under the supervision of St. Patrick,
the delay of five days in a distress is explained by the history of a combat
between two long previous in Magh-inis. “When they had all things ready
for plying their arms, except a witness alone, they met a woman at the place
of combat, and she requested of them a delay, saying, ‘If it were my
husband that were there I would compel you to delay.’ ‘I would delay,’ said
one of them, ‘but it would be prejudicial to the man who sues me; it is his
cause that would be delayed.’ ‘I will delay,’ said the other. The combat was
then put off, but they did not know till when it was put off, until
Conchubhur and Sencha passed judgment respecting it; and Sencha asked,
‘What is the name of this woman?’ ‘Cuicthi,’ (five) said she, ‘is my name.’
‘Let the combat be delayed,’ said Sencha, ‘in the name of this woman for
five days.’”298 The combative ardor of the Feini, indeed, was so strong, and
the appeal to the wager of battle so general, that on their conversion to
Christianity they found it difficult to understand that the holy ministers of
Christ should be restricted from vindicating their rights by arms, and St.
Patrick, in a synod held in 456, was obliged to threaten his clergy with
expulsion from the church if they endeavored to escape by appeal to the
sword from settling obligations which they had incurred by giving security
for heathens.299
This prevalence of the wager of battle among the Irish Celts renders
probable its existence likewise among the early inhabitants of Britain. If so,
the long domination of the Romans was doubtless sufficient to extinguish
all traces of it. The Welsh laws attributed to Hoel Dda in the early part of
the tenth century, which are exceedingly minute and precise in their
directions as to all forms of legal procedure, make no allusion to it
whatever. It is true that an ancient collection of laws asserts that the code of
Dyvnwal-moel-mud, a British king, prescribed the ordeals of battle, of hot
iron, and of boiling water, and that Hoel in his legislation considered them
unjust, abrogated them, and substituted the proof by men, or raith.300 This
legend, however, is very apocryphal. There is no allusion to such customs in
the Welsh codes up to the close of the twelfth century, and the few

indications which occur in subsequent collections would seem to indicate
that these were rather innovations due to the influence of the English
conquest than revivals of ancient institutions.
Among the Slavs, as they emerge into history, the duel occupies a
controlling position in the administration of justice. Ibn Dost, an Arab
traveller in Russia in the tenth century, relates that a pleader dissatisfied
with the judgment of the king could always appeal to the sword, and this
decision was regarded as so absolute that the defeated party, his family and
possessions were all at the disposition of the victor. In Bohemia at a later
period the successful combatant was required to decapitate his
antagonist.301 The earliest records of the various other Slavic lands give
evidence of the prevalence of the judicial combat, showing that it formed
part of their ancestral customs prior to their occupation of their present
territories.302
Among the Norræna branch of the Teutons the wager of battle can be
traced back to the realm of legend and tradition. Saxo Grammaticus informs
us that about the Christian era Frotho III., or the Great, of Denmark, ordered
the employment of the duel to settle all controversies, preferring that his
warriors should accustom themselves to rely, not on eloquence, but on
courage and skill;303 and however doubtful the chronology may be, the
tradition shows that the origin of the custom was lost in the depths of
antiquity. Among the heathen Norsemen, indeed, the holm-gang, or single
combat, was so universal an arbiter that it was recognized as conferring a
right where none pre-existed. Any athlete, who confided in his strength and
dexterity with his weapons, could acquire property by simply challenging
its owner to surrender his land or fight for it. When Iceland, for instance,
was in process of settlement, Kraku Hreidar sailed thither, and on sighting
land invoked Thor to assign to him a tract of ground which he would
forthwith acquire by duel. He was shipwrecked on reaching the shore, and
was hospitably received by a compatriot named Havard, with whom he
passed the winter. In the spring he declared his purpose of challenging
Sæmund Sudureyska for a sufficient holding, but Havard dissuaded him,
arguing that this mode of acquiring property rarely prospered in the end,
and Eirek of Goddolom succeeded in quieting him by giving him land
enough. Others of these hardy sea-rovers were not so amenable to reason as

Kraku. When Hallkell came to Iceland and passed the winter with his
brother Ketelbiorn, the latter offered him land on which to settle, but
Hallkell disdained so peaceful a proposition, and preferred to summon a
neighbor named Grim to surrender his property or meet him in the holm-
gang. Grim accepted the defiance, was slain, and Hallkell was duly
installed as his heir. A variation of the custom is illustrated by the case of
Hrolleif, who after some years’ settlement grew dissatisfied with his
holding, and challenged his neighbor Eyvind to an exchange of properties
or a combat, alternatives of which the peace-loving Eyvind accepted the
former.304 The Saga of Egil Skallagrimsson speaks of a noted duellist
known as Ljot the Pale, who had come to the district a landless stranger,
and had grown wealthy by thus challenging proprietors and taking their
lands, but who met his fate at the hands of Egil, who, while travelling, came
to the place where Ljot was about to engage in a holm-gang with a weaker
antagonist. Egil volunteered to take his place, and promptly slew Ljot. The
holm-gang was so named because the battle was usually fought on a small
island or holm; and that it was regarded as an appeal to the gods is
manifested by the custom of the victor sacrificing an ox as soon as he left
the spot.305
It is true that Tacitus makes no allusion to such a custom among the
Germans of his time, a passage which is frequently quoted to that effect
being in reality only a description of a mode of divination in which, at the
beginning of a war, one of the enemy was captured and made to fight with a
chosen champion, the result of the combat being taken to foreshadow the
event of the contest.306 The object of Tacitus, however, was not to excite the
curiosity of his countrymen, but rather to contrast their vices with the
uncivilized virtues of the Germans, and his silence on this point is not a
negative evidence of weight in comparison with the positive proofs which
exist with regard to kindred tribes. Be this as it may, as soon as we obtain
an insight into their customs from written laws, we find the wager of battle
everywhere recognized. The earliest of these is the code of the Burgundians,
collected by King Gundobald towards the close of the fifth century, and in
this the duel occupies a place so conspicuous that it obtained in time the
name of Lex Gundebalda or Loy Gombette, giving rise to a belief that it
was of Burgundian origin.

In the ordinary texts of the Salic law no mention is made of it, but in one
manuscript it is alluded to as a regular form of procedure.307 This silence,
however, does not justify the conclusion that the battle ordeal was not
practised among the Franks. Enough instances of it are to be found in their
early history to show that it was by no means uncommon;308 and, at a later
period, the same absence of reference to it is observable in the Lex
Emendata of Charlemagne, though the capitularies of that monarch
frequently allude to it as a legal process in general use. The off-shoots of
the Salic law, the Ripuarian, Allemannic, and Bavarian codes—which were
compiled by Thierry, the son of Clovis, revised successively by Childebert
and Clotair II., and put into final shape by Dagobert I. about the year 630—
in their frequent reference to the “campus,” show how thoroughly it
pervaded the entire system of Germanic jurisprudence. The Lombards were,
if possible, even more addicted to its use. Their earliest laws, compiled by
King Rotharis in 643, seventy-six years after their occupation of Italy, make
constant allusion to it, and their readiness to refer to its decision the most
conspicuous cases is shown in the story of Queen Gundeberga, the wife of
Ariovaldus, who was the immediate predecessor of Rotharis. Adalulf, a
disappointed lover, brought against her a charge of conspiracy which
induced Ariovaldus to cast her in prison, where she lay for three years, until
Clotair the Great, to whom she was of kindred, sent an embassy to obtain
her release. Diplomacy was of no avail, and all that the Frankish envoys
could accomplish was to secure for her a trial by single combat, in which a
champion named Pitto overcame Adalulf the accuser, and Gundeberga was
restored to the throne with her innocence recognized.309 Indeed, the
tenacious hold which it maintained on the veneration of the Lombards is
seen in the fruitless efforts to restrict its employment and to abrogate it by
Rotharis and his successors under the civilizing influence of contact with
Roman institutions. Thus Rotharis forbids its use in some cases of
importance, substituting conjurators, with a marked expression of disbelief,
which shows how little confidence was felt in its results by enlightened
men.310 The next lawgiver, King Grimoald, decreed that thirty years’
possession of either land or liberty relieved a defendant from maintaining
his title by battle, the privilege of employing conjurators being then
conceded to him.311 In the succeeding century, King Liutprand sought to
abolish it entirely, but finding the prejudices of his people too strong to be

overcome, he placed on record in the statute-book a declaration of his
contempt for it and a statement of his efforts to do away with it, while he
was obliged to content himself with limiting the extent of its application,
and diminishing the penalties incurred by the defeated party.312
While the laws of the Angles, the Saxons, and the Frisians bear ample
testimony to the general use of the wager of battle,313 it is not a little
singular that the duel appears to have been unknown among the Anglo-
Saxons. Employed so extensively as legal evidence throughout their
ancestral regions, by the kindred tribes from which they sprang, and by the
Danes and Norwegians who became incorporated with them; harmonizing,
moreover, with their general habits and principles of action, it would seem
impossible that they should not likewise have practised it. I can offer no
explanation of the anomaly, and can only state the bare fact that the judicial
combat is not referred to in any of the Anglo-Saxon or Anglo-Danish
codes.314 There seems, indeed, to be no reason to doubt that its introduction
into English jurisprudence dates only from the time of William the
Conqueror.315
The Goths, while yet untainted by the influence of Rome, were no less
given to the employment of the judicial duel than their Teutonic kindred,
and Theodoric vainly endeavored to suppress the custom among those of
his subjects who had remained in Pannonia.316 That no trace of it is to be
found among the extant laws of both Ostrogoths and Wisigoths, framed
subsequently to their settlement in Italy, France, and Spain, is easily
explained. The effect upon the invaders of the decaying but still majestic
civilization of Rome, the Byzantine education of Theodoric, the leader of
the Ostrogoths, and his settled policy of conciliating the Italians by
maintaining as far as possible the existing state of society, preclude any
surprise that no allusion to the practice should occur in the short but
sensible code known as the “Edict of Theodoric,” which shows how
earnestly that enlightened conqueror endeavored to fuse the invaders and
the vanquished into one body politic.317 With regard to the Wisigoths, we
must remember that early conversion to Christianity and long intercourse
with civilization had already worn off much of the primitive ferocity of a
race which could produce in the fourth century such a man as Ulphilas.
They were the earliest of the invaders who succeeded in forming a

permanent occupation of the conquered territories; and settling, as they did,
in Narbonensian Gaul and Spain while the moral influence of Rome was yet
all powerful, the imperial institutions exercised a much greater effect upon
them than on the subsequent bands of Northern barbarians. Accordingly, we
find their codes based almost entirely upon the Roman jurisprudence, with
such modifications as were essential to adapt it to a ruder state of society.
Their nicely balanced provisions and careful distinctions offer a striking
contrast to the shapeless legislation of the races that followed, and neither
the judicial combat nor canonical compurgation found a place in them.
Even the vulgar ordeal would appear to have been unknown until a period
long subsequent to the conquest of Aquitaine by Clovis, and but little
anterior to the overthrow of the Gothic kingdom of Spain by the Saracens.
But even as in Italy the Lombard domination destroyed the results of
Theodoric’s labors, so in France the introduction of the Frankish element
revived the barbarian instincts, and in the celebrated combat before Louis le
Débonnaire, between Counts Bera and Sanila, who were both Goths, we
find the “pugna duorum” claimed as an ancient privilege of the race, with
the distinction of its being equestrian, in accordance with Gothic usages,
and so thoroughly was the guilt of Bera considered to be proved by his
defeat, that his name became adopted in the Catalan dialect as a synonym of
traitor.318

CHAPTER III.
UNIVERSAL USE OF THE JUDICIAL COMBAT.

The wager of battle thus formed part of the ancestral institutions of all the
races who founded the nations of Europe. With their conversion to
Christianity the appeal was transferred from the heathen deities to God,
who was expected to intervene and decide the battle in favor of the right.319
It was an appeal to the highest court and popular confidence in the
arbitrament of the sword was rather strengthened than diminished.
Enlightened lawgivers not only shared, to a greater or less extent, in this
confidence, but were also disposed to regard the duel with favor as the most
practical remedy for the crime of false swearing which was everywhere
prevalent. Thus Gundobald assumes that its introduction into the
Burgundian code arose from this cause;320 Charlemagne urged its use as
greatly preferable to the shameless oaths which were taken with so much
facility;321 while Otho II., in 983, ordered its employment in various forms
of procedure for the same reason.322 It can hardly be a source of surprise, in
view of the warlike manners of the times, and of the enormous evils for
which a palliative was sought, that there was felt to be advantage in this
mode of impressing upon principals and witnesses the awful sanctity of the
oath, thus entailing upon them the liability of supporting their asseverations
by undergoing the risks of a combat rendered doubly solemn by imposing
religious ceremonies.
Various causes were at work to extend the application of the judicial duel
to all classes of cases. In the primitive codes of the barbarians, there is no
distinction made between civil and criminal law. Bodily punishment being
almost unknown, except for slaves, and nearly all infractions of the law
being visited with fines, there was no necessity for such niceties, the matter
at stake in all cases being simply money or money’s worth. Accordingly, we
find the wager of battle used indiscriminately, both as a defence against
accusations of crime, and as a mode of settling cases of disputed property,
real and personal. Yet some of the earlier codes refer to it but seldom. The
Salic law, as we have seen, hardly recognizes its existence; the Ripuarian
code alludes to it but four times, and that of the Alamanni but six times. In
others, like the Baioarian, it is appealed to on almost every occasion, and

among the Burgundians we may assume, from a remark of St. Agobard, that
it superseded all evidence and rendered superfluous any attempt to bring
forward witnesses.323 This variation is probably rather apparent than real,
and if in any of these bodies of laws there were originally substantial
limitations on its use, in time they disappeared, for it was not difficult to
find expedients to justify the extension of a custom which accorded so
perfectly with the temper of the age. How little reason was requisite to
satisfy the belligerent aspirations of justice is shown by a curious provision
in the code of one of the Frisian tribes, by which a man unable to disprove
an accusation of homicide was allowed to charge the crime on whomsoever
he might select, and then the question between them was decided by
combat.324
The elasticity, in fact, with which the duel lent itself to the advantage of
the turbulent and unscrupulous had no little influence in extending its
sphere of action. This feature in its history is well exemplified in a
document containing the proceedings of an assembly of local magnates,
held in the year 888, to decide a contention concerning the patronage of the
church of Lessingon. After the testimony on one side had been given, the
opposite party commenced in reply, when the leaders of the assembly,
seizing their swords, vowed that they would affirm the truth of the first
pleader’s evidence with their blood before King Arnoul and his court—and
the case was decided without more ado.325 The strong and the bold are apt
to be the ruling spirits in all ages, and were emphatically so in those periods
of scarcely curbed violence when the jurisprudence of the European
commonwealths was slowly developing itself.
It is no wonder, therefore, that means were readily found for extending
the jurisdiction of the wager of battle as widely as possible. One of the most
fruitful of these expedients was the custom of challenging witnesses. The
duel was a method of determining questions of perjury, and there was
nothing to prevent a suitor, who saw his case going adversely, from
accusing an inconvenient witness of false swearing and demanding the
“campus” to prove it—a proceeding which adjourned the main case, and
likewise decided its result. This summary process, of course, brought every
action within the jurisdiction of force, and deprived the judges of all
authority to control the abuse. That it obtained at a very early period is

shown by a form of procedure occurring in the Bavarian law, already
referred to, by which the claimant of an estate is directed to fight, not the
defendant, but his witness;326 and in 819 a capitulary of Louis le
Débonnaire gives a formal privilege to the accused on a criminal charge to
select one of the witnesses against him with whom to decide the question in
battle.327 It is easy, therefore, to understand the custom, prescribed in some
of the codes, by which witnesses were required to come into court armed,
and to have their weapons blessed on the altar before giving their testimony.
If defeated they were fined, and were obliged to make good to the opposite
party any damage which their testimony, had it been successful, would have
caused him.328
Nor was this merely a temporary extravagance. Late in the thirteenth
century, after enlightened legislators had been strenuously and not
unsuccessfully endeavoring to limit the abuse of the judicial combat, the
challenging of witnesses was still the favorite mode of escaping legal
condemnation.329 Even in the fourteenth century, the municipal law of
Reims, which allowed the duel between principals only in criminal cases,
permitted witnesses to be indiscriminately challenged and forced to fight,
affording them the privilege of employing champions only on the ground of
physical infirmity or advanced age.330 A still more bizarre extension of the
practice, and one which was most ingeniously adapted to defeat the ends of
justice, is found in a provision of the English law of the thirteenth century,
allowing a man to challenge his own witnesses. Thus in many classes of
crimes, such as theft, forgery, coining, etc., the accused could summon a
“warrantor” from whom he professed to have received the articles which
formed the basis of the accusation. The warrantor could scarcely give
evidence in favor of the accused without assuming the responsibility
himself. If he refused, the accused was at liberty to challenge him; if he
gave the required evidence, he was liable to a challenge from the accuser.331
The warrantor was sometimes also employed as a champion, and served for
hire, but this service was illegal and when detected involved the penalties of
perjury.332 Another mode extensively used in France about the same time
was to accuse the principal witness of some crime rendering him incapable
of giving testimony, when he was obliged to dispose of the charge by

fighting, either personally or by champion, in order to get his evidence
admitted.333
It is not easy to imagine any cases which might not thus be brought to the
decision of the duel; and the evidence of its universality is found in the
restriction which prevented the appearance as witnesses of those who could
not be compelled to accept the combat. Thus the testimony of women and
ecclesiastics was not receivable in lay courts in suits where appeal of battle
might arise;334 and when in the twelfth century special privileges were
granted by the kings of France empowering serfs to bear testimony in court,
the disability which prevented a serf from fighting with a freeman was
declared annulled in such cases, as the evidence was only admissible when
the witness was capable of supporting it by arms.335
The result of this system was that, in causes subject to such appeals, no
witness could be forced to testify, by the French law of the thirteenth
century, unless his principal entered into bonds to see him harmless in case
of challenge, to provide a champion, and to make good all damages in case
of defeat;336 though it is difficult to understand how this could be
satisfactorily arranged, since the penalties inflicted on a vanquished witness
were severe, being, in civil causes, the loss of a hand and a fine at the
pleasure of the suzerain, while in criminal actions “il perderoit le cors
avecques.”337 The only limit to this abuse was that witnesses were not liable
to challenge in cases concerning matters of less value than five sous and
one denier.338

If the position of a witness was thus rendered unenviable, that of the
judge was little better. As though the duel had not received sufficient
extension by the facilities for its employment just described, another mode
of appealing to the sword in all cases was invented by which it became
competent for the defeated party in any suit to challenge the court itself, and
thus obtain a forcible reversal of judgment. It must be borne in mind that
this was not quite as absurd a practice as it may seem to us in modern times,
for under the feudal system the dispensing of justice was one of the most

highly prized attributes of sovereignty; and, except in England, where the
royal judges were frequently ecclesiastics, the seignorial courts were
presided over by warriors. In Germany, indeed, where the magistrates of the
lower tribunals were elective, they were required to be active and vigorous
of body.339 Towards the end of the twelfth century in England we find
Glanville acknowledging his uncertainty as to whether or not the court
could depute the settlement of such an appeal to a champion, and also as to
what, in case of defeat, was the legal position of the court thus convicted of
injustice.340 These doubts would seem to indicate that the custom was still
of recent introduction in England, and not as yet practised to an extent
sufficient to afford a settled basis of precedents for its details. Elsewhere,
however, it was firmly established. In 1195, the customs of St. Quentin
allow to the disappointed pleader unlimited recourse against his judge.341
Towards the latter half of the thirteenth century, we find in the Conseil of
Pierre de Fontaines the custom in its fullest vigor and just on the eve of its
decline. No restriction appears to be imposed as to the cases in which
appeal by battle was permitted, except that it was not allowed to override
the customary law.342 The suitor selected any one of three judges agreeing
in the verdict; he could appeal at any stage of the proceedings when a point
was decided against him; if unsuccessful, he was only liable in a pecuniary
penalty to the judges for the wrong done them, and the judge, if vanquished,
was exposed to no bodily punishment.343 The villein, however, was not
entitled to the privilege, except by special charter.344 While the feudal
system was supreme, this appeal to arms was the only mode of reversing a
judgment, and an appeal in any other form was an innovation introduced by
the extension of the royal jurisdiction under St. Louis, who labored so
strenuously and so effectually to modify the barbarism of feudal institutions
by subordinating them to the principles of the Roman jurisprudence. De
Fontaines, indeed, states that he himself conducted the first case ever
known in Vermandois of an appeal without battle.345 At the same time the
progress of more rational ideas is manifested by his admission that the
combat was not necessary to reverse a judgment manifestly repugnant to the
law, and that, on the other hand, the law was not to be set aside by the duel.
Twenty years later, we find in Beaumanoir abundant evidence of the
success of St. Louis in setting bounds to the abuses which he was
endeavoring to remove. The restrictions which he enumerates are greatly

more efficacious than those alluded to by de Fontaines. In capital cases, the
appeal did not lie; while in civil actions, the suzerain before whom the
appeal was made could refuse it when the justice of the verdict was self-
evident. Some caution, moreover, was requisite in conducting such cases,
for the disappointed pleader who did not manage matters rightly might find
himself pledged to a combat, single handed, with all his judges at once; and
as the bench consisted of a collection of the neighboring gentry, the result
might be the confirmation of the sentence in a manner more emphatic than
agreeable. An important change is likewise observable in the severe penalty
imposed upon a judge vanquished in such an appeal, being a heavy fine and
deprivation of his functions in civil cases, while in criminal ones it was
death and confiscation—“il pert le cors et quanques il a.”346
The king’s court, however, was an exception to the general rule. No
appeals could be taken from its judgments, for there was no tribunal before
which they could be carried.347 The judges of the royal court were therefore
safe from the necessity of vindicating their decisions in the field, and they
even carried this immunity with them and communicated it to those with
whom they might be acting. De Fontaines accordingly advises the seigneur
justicier who anticipates the appeal of battle in his court to obtain a royal
judge to sit with him, and mentions an instance in which Philip (probably
Philip Augustus) sent his whole council to sit in the court of the Abbey of
Corbie, when an appeal was to be entered.348
By the German law of the same period, the privilege of reversing a
sentence by the sword existed, but accompanied with regulations which
seem evidently designed to embarrass, by enormous trouble and expense,
the gratification of the impulse which disappointed suitors would have to
establish their claims in such manner. Thus, by the Suabian law, it could
only be done in the presence of the sovereign himself, and not in that of the
immediate feudal superior;349 while the Saxon code requires the
extraordinary expedient of a pitched battle, with seven on each side, in the
king’s presence.350 It is not a little singular that the feudal law of the same
period has no allusion to the custom, all appeals being regularly carried to
and heard in the court of the suzerain.351

CHAPTER IV.
CONFIDENCE REPOSED IN THE JUDICIAL DUEL.

Thus carefully moulded in conformity with the popular prejudices or
convictions of every age and country, it may readily be imagined how large
a part the judicial combat played in the affairs of daily life. It was so
skilfully interwoven throughout the whole system of jurisprudence that no
one could feel secure that he might not, at any moment, as plaintiff,
defendant, or witness, be called upon to protect his estate or his life either
by his own right hand or by the club of some professional and possibly
treacherous bravo. This organized violence assumed for itself the sanction
of a religion of love and peace, and human intelligence seemed too much
blunted to recognize the contradiction.
There was, in fact, no question which might not be submitted to the
arbitrament of the sword or club. If Charlemagne, in dividing his vast
empire, forbade the employment of the wager of battle in settling the
territorial questions which might arise between his heirs,352 the prohibition
merely shows that it was habitually used in affairs of the highest moment,
and the constant reference to it in his laws proves that it was in no way
repugnant to his general sense of justice and propriety.
The next century affords ample evidence of the growing favor in which
the judicial combat was held. About the year 930, Hugh, King of Provence
and Italy, becoming jealous of his uterine brother, Lambert, Duke of
Tuscany, asserted him to be a supposititious child, and ordered him in future
to claim no relationship between them. Lambert, being “vir ... bellicosus et
ad quodlibet facinus audax,” contemptuously denied the aspersion on his
birth, and offered to clear all doubts on the subject by the wager of battle.
Hugh accordingly selected a warrior named Teudinus as his champion;
Lambert was victor in the ensuing combat, and was universally received as
the undoubted son of his mother. His triumph, however, was illegally
brought to a sudden close, for Hugh soon after succeeded in making him
prisoner and deprived him of eyesight.353 Still, the practice continued to be
denounced by some enlightened ecclesiastics, represented by Atto, Bishop
of Vercelli, who declared it to be totally inapplicable to churchmen and not

to be approved for laymen on account of the uncertainty of its results;354 but
representations of this kind were useless. About the middle of the century,
Otho the Great appears, throwing the enormous weight of his influence in
its favor. As a magnanimous and warlike prince, the wager of battle appears
to have possessed peculiar attraction for his chivalrous instincts, and he
extended its application as far as lay in his power. Not only did he force his
daughter Liutgarda, in defending herself from a villanous accusation, to
forego the safer modes of purgation, and to submit herself to the perilous
decision of a combat,355 but he also caused the abstract question of
representation in the succession of estates to be settled in the same manner;
and to this day in Germany the division of a patrimony among children and
grandchildren is regulated in accordance with the law enacted by the
doughty arms of the champions who fought together nine hundred years ago
at Steil.356 There was no question, indeed, which according to Otho could
not be satisfactorily settled in this manner. Thus when, in 963, he was
indulging in the bitter recriminations with Pope John XII. which preceded
the subjugation of the papacy under the Saxon emperors, he had occasion to
send Bishop Liutprand to Rome to repel certain accusations brought against
him, and he ordered the armed followers of his ambassador to sustain his
assertions by the duel; a proposition promptly declined by the pontiff,
skilled though he was in the use of weapons.357 A duellist, in fact, seems to
have been reckoned a necessary adjunct to diplomacy, for when, in 968, the
same Liutprand was dispatched by Otho to Constantinople on a matrimonial
mission, and during the negotiations for the hand of Theophania a
discussion arose as to the circumstances which had led to Otho’s conquest
of Italy, the warlike prelate offered to prove his veracity by the sword of
one of his attendants: a proposition which put a triumphant end to the
argument.358 A more formal assertion of the diplomatic value of the duel
was made when in 1177 the conflicting claims of the kings of Castile and
Navarre were referred to Henry II. of England for adjudication, and both
embassies to the English court were supplied with champions as well as
with lawyers, so as to be prepared in case the matter was submitted to the
duel for decision.359
Nor were these solitary instances of the reference of the mightiest state
questions to the chances of the single combat. Allusion has already been
made to the challenge which passed between Charles of Anjou and Pedro of

Aragon, and not dissimilar was that which resulted from the interview at
Ipsch in 1053 between the Emperor Henry III. of Germany and Henry I. of
France.360 A hundred years earlier, in 948, when, at the Synod of Ingelheim,
Louis d’Outremer invoked the aid of the Church in his death-struggle with
the rising race of Capet, he closed the recital of the wrongs endured at the
hands of Hugh le grand by offering to prove the justice of his complaints in
single combat with the aggressor.361 When the battle ordeal was thus
thoroughly incorporated in the manners of the age, we need scarcely be
surprised that, in a life of St. Matilda, written by command of her son Otho
the Great, the author, after describing the desperate struggles of the Saxons
against Charlemagne, should gravely inform us that the war was at last
concluded by a duel between the Christian hero and his great antagonist
Witikind, religion and empire being both staked on the issue as a prize of
the victor; nor does the pious chronicler shudder at the thought that the
destiny of Christianity was intrusted to the sword of the Frank.362 His story
could not seem improbable to those who witnessed in 1034 the efforts of
Conrad the Salic to pacify the Saxon marches. On his inquiring into the
causes of the mutual devastations of the neighboring races, the Saxons, who
were really the aggressors, offered to prove by the duel that the Pagan
Luitzes were in fault, trusting that their Christianity would overbalance the
injustice of their cause. The defeat of their champion by his heathen
adversary was, however, a memorable example of the impartial justice of
God, and was received as a strong confirmation of the value of the battle
trial.363
The second Otho was fully imbued with his father’s views, and so
completely did he carry them out, that in a gloss on the Lombard law he is
actually credited with the introduction of the duel.364 In the preceding essay,
allusion has been made to his substitution of the judicial combat for the
compurgatorial oath in 983, and about the same period he made an
exception, in favor of the battle ordeal, to the immemorial policy of the
barbarians which permitted to all subject races the enjoyment of their
ancestral usages. At the council of Verona, where all the nobles of Italy,
secular and ecclesiastical, were assembled, he caused the adoption of a law
which forced the Italians in this respect to follow the customs of their
conquerors.365 Even the church was deprived of any exemption which she
might previously have enjoyed, and was only allowed the privilege of

appearing by her advocati or champions.366 There were small chances of
escape from the stringency of these regulations, for an edict of Otho I. in
971 had decreed the punishment of confiscation against any one who should
refuse to undergo the chances of the combat.367 It may even be assumed,
from the wording of a constitution of the Emperor Henry II., that in the
early part of the eleventh century it was no longer necessary that there
should be a doubt as to the guilt of the accused to entitle him to the
privileges of the combat, and that even the most notorious criminal could
have a chance of escape by an appeal to the sword.368
Thus it came to pass that nearly every question that could possibly arise
was finally deemed liable to the decision of the wager of battle. If Otho the
Great employed champions to legislate respecting a disputed point of law,
he was not more eccentric than the Spaniards, who settled in the same
manner a controversy regarding the canonical observances of religion,
when Gregory VII. endeavored to force the introduction of the Roman
liturgy into Castile and Leon, in lieu of the national Gothic or Mozarabic
rite. With considerable difficulty, some years before, Navarre and Aragon
had been led to consent to the change, but the Castilians were doggedly
attached to the observances of their ancestors, and stoutly refused
compliance. In 1077, Alfonso I. procured the assent of a national council,
but the people rebelled, and after repeated negotiations the matter was
finally referred to the umpirage of the sword. The champion of the Gothic
ritual was victorious, and tradition adds that a second trial was made by the
ordeal of fire; a missal of each kind was thrown into the flames, and the
national liturgy emerged triumphantly unscathed.369
Nearly contemporary with this was the celebrated case of Otho, Duke of
Bavaria, perhaps the most noteworthy example of a judicial appeal to the
sword. A worthless adventurer, named Egeno, accused Otho of conspiring
against the life of Henry IV. In a diet held at Mainz, the duke was
commanded to disprove the charge by doing battle with his accuser within
six weeks. According to some authorities, his pride revolted at meeting an
adversary so far his inferior; according to others, he was prevented from
appearing in the lists only by the refusal of the emperor to grant him a safe
conduct. Be this as it may, the appointed term elapsed, his default of
appearance caused judgment to be taken against him, and his duchy was

accordingly confiscated. It was bestowed on Welf, son of Azo d’Este and of
Cunigunda, descendant and heiress of the ancient Guelfic Agilolfings; and
thus, on the basis of a judicial duel, was founded the second Bavarian house
of Guelf, from which have sprung so many royal and noble lines, including
their Guelfic Majesties of Britain. Some years later, the emperor himself
offered to disprove by the same means a similar accusation brought against
him by a certain Reginger, of endeavoring to assassinate his rival, Rodolph
of Suabia. Ulric of Cosheim, however, who was involved in the accusation,
insisted on taking his place, and a day was appointed for the combat, which
was prevented only by the opportune death of Reginger.370
Scarcely less impressive in its results, and even more remarkable in itself,
as exhibiting the duel invested with legislative as well as judicial functions,
is the case wherein the wager of battle was employed in 1180 to break the
overgrown power of Henry the Lion. That puissant Duke of Saxony and
Bavaria had long divided the power of the empire and defied the repeated
efforts of Frederic Barbarossa to punish his constantly recurring rebellions.
Cited to appear and answer for his treasons in successive diets, he
constantly refused, on the plea that the law required him to have a trial
within his own dominions. At length, in the diet of Würzburg, a noble arose
and declared himself ready to prove by the single combat that the emperor
could legally cite his princes before him at any place that he might select
within the limits of the empire. Of course there was none to take up the
challenge, and Frederic was enabled to erect the principle thus asserted into
a binding law. Henry was condemned by default, and his confiscated
possessions were shared between those who had arranged and enacted the
comedy.371
No rank of life in fact procured exemption from the duel between
antagonists of equal station. When in 1002, on the death of Otho III., the
German throne was filled by the election of Henry the Lame, Duke of
Bavaria, one of his disappointed competitors, Hermann, Duke of Suabia, is
said to have demanded that their respective claims should be determined by
a judicial combat, and the new king, feeling himself bound to accept the
wager of battle, proceeded to the appointed place, and waited in vain for the
appearance of his antagonist.372 Thus the champion of England, who until
1821 figured in the coronation pageant of Westminster Abbey, was a relic of

the times when it was not an idle ceremony for the armed and mounted
knight to fling the gauntlet and proclaim aloud that he was ready to do
battle with any one who challenged the right of the new monarch to his
crown.373 A striking example of the liability attaching to even the most
exalted rank is afforded by a declaration of the privileges of the Duchy of
Austria, granted by Frederic Barbarossa in 1156, and confirmed by Frederic
II. in 1245. These privileges rendered the dukes virtually independent
sovereigns, and among them is enumerated the right of employing a
champion to represent the reigning duke when summoned to the judicial
duel.374 Even more instructive is the inference deducible from the For de
Morlaas, granted to his subjects by Gaston IV. of Béarn about the year
1100. The privileges contained in it are guaranteed by a clause providing
that, should they be infringed by the prince, the injured subject shall
substantiate his complaint by his simple oath, and shall not be compelled to
prove the illegality of the sovereign’s acts by the judicial combat, thus
indicating a pre-existing custom of the duel between the prince and his
vassals.375
It is not to be supposed, however, from these instances that the duel was
an aristocratic institution, reserved for nobles and affairs of state. It was an
integral part of the ordinary law, both civil and criminal, employed
habitually for the decision of the most every-day affairs. Thus a chronicler
happens to mention that in 1017 the Emperor St. Henry II. coming to
Merseburg hanged a number of robbers who had been convicted in single
combat by champions, and then proceeding to Magdeburg he had all the
thieves assembled and treated them in the same manner.376 So much was it
a matter of course, that, by the English law of the thirteenth century, a
pleader was sometimes allowed to alter the record of his preliminary plea,
by producing a man who would offer to prove with his body that the record
was incorrect, the sole excuse for the absurdity being that it was only
allowed in matters which could not injure the other side;377 and a
malefactor turning king’s evidence was obliged, before receiving his
pardon, to pledge himself to convict all his accomplices, if required, by the
duel.378
The habitual use of such a method of administering justice required no
little robustness of faith in the expected intervention of God to control the

event. Even in the fifteenth century, when the combat was rapidly becoming
obsolete, this faith is pictorially embodied in an illuminated MS. of
Tallhöfer’s Kamp-recht, where a miniature represents the victor kneeling
and returning thanks to God, while the vanquished is lying on his back with
Satan grasping at his open mouth as though already seizing the soul of the
criminal.379 This robustness of faith was proof against experience and
common sense, and sought to explain the frequent miscarriage of justice by
any process of reasoning rather than the right one. Thus about the year 1100
a sacrilegious thief named Anselm stole the sacred vessels from the church
of Laon and sold them to a merchant, from whom he exacted an oath of
secrecy. Frightened at the excommunications fulminated by the authorities
of the plundered church, the unhappy trader revealed the name of the
robber. Anselm denied the accusation, offered the wager of battle, defeated
the unfortunate receiver of stolen goods, and was proclaimed innocent.
Encouraged by impunity, he repeated the offence, and after his conviction
by the ordeal of cold water he confessed the previous crime. The doubts
cast by this event on the efficacy of the judicial combat were, however,
happily removed by the suggestion that the merchant had suffered for the
violation of the oath which he had sworn to Anselm, and the reputation of
the duel remained intact.380
The frequent cases of this nature often did not admit of so ingenious an
explanation of the criminal’s escape, and legal casuists assumed a condition
of being, guilty in the sight of God, but not in that of man—a refinement of
speculation which even finds place in the German codes of the thirteenth
century;381 and men contented themselves then, as they do still, with
predicting future misfortunes and an eternity of punishment. The more
direct solution, in cases of unjust condemnation, was very much like that
which justified the defeat of Anselm’s merchant—that the unfortunate
victim, though innocent of the special offence charged, suffered in
consequence of other sins. This doctrine was even supported by the
infallible authority of the papacy, as enunciated in 1203 by Innocent III. in a
case wherein the priory of St. Sergius was unjustly convicted of theft by the
judicial duel, and its possessions were consequently seized by the
authorities of Spoleto.382

An example justifying this theory is found in the case of Henry of Essex
in 1163. He was a favorite of Henry II. and one of the most powerful nobles
of his day, till he was accused of treason by his kinsman Robert de Montfort
for having abandoned his king when in desperate straits in the Welsh war of
1157. A duel ensued, fought on an island of the Thames near Reading, in
presence of an immense assemblage. Henry had been a bad neighbor to the
Abbey of St. Edmund, and when engaged in the desperate contest he was
dismayed at seeing the angry saint hovering in the air and threatening him;
nor was this all, for Gilbert de Cerivilla, whom he had unjustly put to death,
likewise appeared and menaced him. The inevitable result of this was his
defeat; he was left for dead on the field, but at the instance of his powerful
kindred his body was allowed Christian burial in the Abbey of Reading.
Carried thither he unexpectedly revived and embraced a religious life in the
abbey, where years afterwards he related the story of his discomfiture to the
veracious chronicler who has handed it down.383
That the combatants themselves did not always feel implicit confidence
in the event, or rely solely upon the righteousness of their cause, is shown
by the custom of occasionally bribing Heaven either to assist the right or to
defend the wrong. Thus, in the eleventh century, we find the monastery of
St. Peter at Bèze in the enjoyment of certain lands bestowed on the Saint by
Sir Miles the Stammerer, who in this way endeavored to purchase his
assistance in a combat about to take place—a bargain no doubt highly
appreciated by the worthy monks.384 According to the belief of the pious,
Heaven might be propitiated by less venal means, for Cæsarius of
Heisterbach relates on the authority of an eye-witness that when Henry VI.
entered Lombardy in 1196, a castellan was accused before him of
oppression and rapine by his neighbors, who produced a champion of
enormous size to vindicate their case. The Emperor decreed the battle, when
the brother of the accused offered himself for the defence—a slender and
most unequal antagonist. He prepared himself for the strife, however, by
assiduous confession and prayer, and easily overcame his huge adversary;
and thus, exclaims the worthy chronicler, a guilty man escaped the death he
had deserved, solely by virtue of the humble confession of his brother.385
Cæsarius also mentions another case, in a duel decreed by Frederic
Barbarossa between a knight and a gigantic champion, where the inequality
was more than counterbalanced by the fact that the knight piously took the

precaution of receiving the sacrament before entering the lists, and thus was
enabled to overcome his adversary.386
Less creditable means were sometimes employed, and men did not
hesitate, with the unreasoning inconsistency characteristic of superstition, to
appeal to God and at the same time endeavor to influence God’s judgment
by the use of unlawful expedients. This was not confined to the laity. In
1355 there was an important suit between the Bishop of Salisbury and the
Earl of Salisbury respecting the ownership of a castle, in which the combat
was adjudged. When the champions entered the lists the customary
examination of their arms and accoutrements was made, and the combat
was adjourned in consequence, as it was said, of finding in the coat of the
episcopal champion certain rolls containing prayers and charms. The case
was finally compromised by the bishop paying fifteen hundred marks to the
earl for the disputed property.387 That precautions against such devices were
deemed necessary is shown by the oath required of all combatants, whether
principals or champions, that they had on them no charms or conjurations to
affect the result.388 A quaint formula for this is the oath of the champion in
the case of Low vs. Paramore in 1571—“This hear you justices that I have
this day neither eat, drunk, nor have upon me either bone, stone, ne glass or
any enchantment, sorcery, or witchcraft where-through the power of the
Word of God might be inleased or diminished and the devil’s power
increased, and that my appeal is true, so help me God and his saints and by
this Book.”389

CHAPTER V.
LIMITATIONS ON THE WAGER OF BATTLE.

The right of demanding the wager of battle between principals varied
much with the age and race, though as a “bilateral” ordeal, as a rule, from
the earliest times either party was entitled to claim it.390 When Beaumanoir
composed his Coutumes du Beauvoisis, in 1283, the practice may be
considered to have entered upon its decadence; twenty years had elapsed
since the determined efforts of St. Louis to abolish it; substitutes for it in
legal processes had been provided; and the manner in which that
enlightened jurist manifests his preference for peaceful forms of law shows
that he fully appreciated the civilizing spirit in which the monarch had
endeavored to soften the ferocity of his subjects. When, therefore, we see in
Beaumanoir’s treatise how few restrictions existed in his time, we may
comprehend the previous universality of the custom. In criminal cases, if an
accuser offered battle, the defendant was forced either to accept it or to
confess his guilt, unless he could prove an alibi, or unless the accuser was
himself notoriously guilty of the crime in question, and the accusation was
evidently a mere device to shift the guilt to the shoulders of another; or
unless, in case of murder, the victim had disculpated him, when dying, and
had named the real criminals.391 If, on the other hand, the accused
demanded to wage his battle, the judge could only refuse it when his guilt
was too notorious for question.392 A serf could not challenge a freeman, nor
a bastard a man of legitimate birth (though an appeal of battle might lie
between two bastards), nor a leper a sound man.393 In civil actions, the
battle trial was not allowed in cases relating to dower, to orphans under
age,394 to guardianships, or to the equity of redemption afforded by the
feudal laws to kinsmen in the sale of heritable property, or where the matter
at stake was of less value than twelve deniers.395 St. Louis also prohibited
the duel between brothers in civil cases, while permitting it in criminal
accusations.396 The slenderness of these restrictions shows what ample
opportunities were afforded to belligerent pleaders.397
In Germany, as a general rule, either party had a right to demand the
judicial combat,398 subject, however, in practice, to several important

limitations. Thus, difference of rank between the parties afforded the
superior a right to decline a challenge, as we shall see more fully
hereafter.399 Relationship between the contestants was also an impediment,
of which either might avail himself,400 and even the fact that the defendant
was not a native of the territory in which the action was brought gave him
the privilege of refusing the appeal.401 Still, we find the principle laid down
even in the fourteenth century that cases of homicide could not be
determined in any other manner.402 There were circumstances, indeed, in
which the complainant, if he could bring the evidence of seven witnesses in
his favor, could decline the duel; but if he choose to prove the charge by the
combat, no examination or testimony was admitted. In the same way, if a
man was slain while committing theft or robbery, and was prosecuted for
the crime, the accuser was not bound to offer the duel if he could produce
the evidence of seven witnesses; but if a relative of the dead man offered to
vindicate him by combat, this annulled all the evidence, and conviction
could not be had without the battle ordeal.403 A curious provision in the
Saxon burgher law allowed a man who had been assaulted to challenge to
the duel as many men as he had wounds—but the wounds were required to
be of a certain degree of severity—wunden kampffbaren.404 So the
contemporary law of Suabia provides that in accusations of personal
violence, the duel was not to be allowed, unless the injury inflicted on the
complainant had been sufficiently serious to cause permanent maiming,405
thus showing how thoroughly different in spirit was the judicial combat
from the modern code of honor which has been affiliated upon it. Yet a
general rule is found expressed to the effect that it was necessary only in
cases where no other evidence was obtainable, when the result could be
safely left to the judgment of Omniscience.406
In the Latin kingdoms of the East, and among the Armenians, who,
curiously enough, adopted the customs of their fellow Christians from the
West, it would seem that in both the noble and the roturier courts, in civil as
well as in criminal cases, the plaintiff or prosecutor was not obliged
personally to fight, but that if one of his witnesses offered battle, the
defendant or accused was not permitted to decline the challenge under pain
of losing his suit or being condemned. On the other hand, unless the
complainant or accuser had a witness who was willing to offer battle, the

oath of denial of the other party was sufficient, and in criminal cases the
accuser was subjected to the talio.407
By the English law of the thirteenth century, a man accused of crime had,
in doubtful cases only, the right of election between trial by jury and the
wager of battle. When a violent presumption existed against him, he was
obliged to submit to the verdict of a jury; but in cases of suspected
poisoning, as satisfactory evidence was deemed unattainable, the accused
had only the choice between confession and the combat.408 On the other
hand, when the appellant demanded the duel, he was obliged to make out a
probable case before it was granted.409 When battle had been gaged,
however, no withdrawal was permitted, and any composition between the
parties to avoid it was punishable by fine and imprisonment410—a
regulation, no doubt, intended to prevent pleaders from rashly undertaking
it, and to obviate its abuse as a means of extortion. In accusations of
treason, indeed, the royal consent alone could prevent the matter from being
fought out.411 Any bodily injury on the part of the plaintiff, tending to
render him less capable of defence or aggression, likewise deprived the
defendant of the right to the wager of battle, and this led to such nice
distinctions that the loss of molar teeth was adjudged not to amount to
disqualification, while the absence of incisors was considered sufficient
excuse, because they were held to be important weapons of offence.412
Notwithstanding these various restrictions, cases of treason were almost
always determined by the judicial duel, according to both Glanville and
Bracton.413 This was in direct opposition to the custom of Lombardy, where
such cases were especially exempted from decision by the sword.414 These
restrictions of the English law, such as they were, did not, however, extend
to the Scottish Marches, where the trial by battle was the universal resource
and no proof by witnesses was admitted.415
In Bearn, the duel was permitted at the option of the accuser in cases of
murder and treason, but in civil suits only in default of testimony.416 That in
such cases it was in common use is shown by a treaty made, in the latter
part of the eleventh century, between Centulla I. of Bearn and the Viscount
of Soule, in which all doubtful questions arising between their respective
subjects are directed to be settled by the combat, with the singular proviso

that the combatants shall be men who have never taken part in war.417 In the
thirteenth century, however, a provision occurs which must have greatly
reduced the number of duels, as it imposed a fine of only sixteen sous on
the party who made default, while, if vanquished, he was visited with a
mulct of sixty sous and the forfeiture of his arms.418 In the neighboring
region of Bigorre an exemption was allowed in favor of the widow whose
husband had been slain in war. Until she remarried or her sons were of age
to bear arms she was exempt from all legal process—a provision evidently
intended to relieve her from the duel in which suits were liable to
terminate.419
In some regions greater restrictions were imposed on the facility for such
appeals to the sword. In Catalonia, for instance, the judge alone had the
power of deciding whether they should be permitted,420 and a similar right
was reserved in doubtful cases to the podestà in a code of laws in force at
Verona in 1228.421 This must often have prevented the injustice inherent in
the system, and an equally prudent reserve was exhibited in a statute of
Montpellier, which required the assent of both parties.422 On the other hand,
in Normandy, at the commencement of the thirteenth century, many cases
relating to real estate were examined in the first instance by a jury of twelve
men, and, if they failed of an unanimous verdict, the question was decided
by the duel, whether the parties were willing or not.423
By the criminal procedure in England, at about the same period, the duel
was prescribed only for cases of felony or crimes of importance, and it was
forbidden in trifling misdemeanors.424 Appeal of battle could not lie
between a vassal and his lord during the existence of the connection, nor
between a serf and his master except in cases of treason.425 It would also
seem that the defendant could avoid the duel if he could prove that the
motive of the appeal was hatred, for there is a curious case on record in
which, when the appellant demanded battle, the accused offered to the king
a silver mark for an impartial jury to decide this preliminary question, and it
was granted to him.426 In Southern Germany a fifteenth century MS.
enumerates seven crimes for which the duel could be prescribed—
detraction of the emperor or empire, treason, theft, robbery and depredation,
rape, arson, and poisoning.427

From a very early period, a minimum limit of value was established,
below which a pugnacious pleader was not allowed to put the life or limb of
his adversary in jeopardy. This varied of course with the race and the
period. Thus, among the Angli and Werini, the lowest sum for which the
combat was permitted was two solidi,428 while the Baioarians established
the limit at the value of a cow.429 In the tenth century, Otho II. decided that
six solidi should be the smallest sum worth fighting for.430 The so-called
laws of Henry I. of England decreed that in civil cases the appeal of battle
should not lie for an amount less than ten solidi.431 In France, Louis le
Jeune, by an edict of 1168, forbade the duel when the sum in debate was
less than five sous,432 and this remained in force for at least a century.433
The custom of Normandy in the thirteenth century specifies ten sous as the
line of demarcation between the lex apparens and the lex simplex in civil
suits,434 and the same provision retains its place in the Coutumier in use
until the sixteenth century.435 In the Latin States of the East founded by the
Crusaders, the minimum was a silver marc in cases of both nobles and
roturiers.436 A law of Aragon, in 1247, places the limit at ten sous.437
As regards the inferior classes of society, innumerable documents attest
the right of peasants to decide their quarrels by the ordeal of battle. By the
old Lombard law, slaves were allowed to defend themselves in this
manner;438 and they could even employ the duel to claim their liberty from
their masters, as we may infer from a law of King Grimoald denying this
privilege to those who could be proved to have served the same master for
thirty continuous years.439 Similarly, among the Frisians, a litus claiming
his liberty was allowed to prove it against his master with arms.440 The
institutions of feudalism widened the distance between the different classes
of society, and we have already seen that, in the thirteenth century, serfs
were enfranchised in order to enable them to support their testimony by the
combat; yet this was only the result of inequality of rank. In the time of
Beaumanoir (1283), though an appeal would not lie from a serf to a
freeman, it may be safely inferred from the context that a combat could be
legally decreed between two serfs if the consent of their masters were
obtained,441 and other contemporary authorities show that a man claimed as
a serf could defend his freedom with the sword against his would-be
master.442 Even Jews were held liable to the appeal of battle, as we learn

from a decision of 1207, preserved in an ancient register of assizes in
Normandy,443 and they no doubt purchased the exemption, which was
granted to them, except in cases of flagrant murder, by Philippe le Long, as
a special favor, in 1317.444
Difference of condition thus became an impediment to the duel, and
formed the subject of many regulations, varying with circumstance and
locality. The free mountaineers of Béarn, as has been seen, placed the
prince and the subject on an equality before the law, but this was a rare
example of independence, and the privileges of station were sometimes
exhibited in their most odious form. In France, for instance, while the battle
trial could take place between the gentilhomme and the vilain, the former
was secured by the distinction that if the villein presumed to challenge him,
he enjoyed the right of fighting on horseback with knightly weapons, while
the challenger was on foot and armed only with shield and staff; but if the
gentleman condescended to challenge the villein, they met on equal
terms.445 This last regulation was enforced with impartial justice, for
Beaumanoir mentions a case in which a gentleman challenged a roturier,
and presented himself in the lists mounted and armed with his knightly
weapons. The defendant protested against this illegal advantage, and the
judges decided that the gentleman had forfeited his horse and arms, and that
if he desired to continue the combat he must do so in the condition in which
he was left by the disarmament—in his shirt without armor or weapons,
while his adversary should retain coat of mail, target, and club.446 The
barbarous injustice of the general rule, moreover, was by no means of
universal application. Pierre de Fontaines, for instance, directs that in cases
of appeal from a roturier to a gentleman the combat shall take place on foot
between champions;447 and I find a case recorded in 1280, in which a
femme de corps of Aimeri de Rochechouart accused the Sire de Montricher
of burning her houses, and as the duel was adjudged she placed in the lists
an armed and mounted knight as her champion, to whom no objection
seems to have been made.448
Throughout both Northern and Southern Germany, where the minute
distinctions of birth were guarded with the most jealous care from a very
early period, the codes of the thirteenth century, including even the burgher
laws, provided that a difference of rank permitted the superior to decline the

challenge of an inferior, while the latter was obliged to accept the appeal of
the former. So thoroughly was this principle carried into practice, that, to
compel the appearance of a Semperfri, or noble of sixteen quarterings, the
appellant was required to prove himself of equally untarnished descent.449
In the same spirit a Jew could not decline the appeal of battle offered by a
Christian accuser, though we may safely infer that the Jew could not
challenge the Christian.450 So, in the Latin kingdom of Jerusalem, the
Greek, the Syrian, and the Saracen could not challenge the Frank, but could
not, in criminal cases, decline his challenge, though they might do so in
civil suits.451 In Aragon, no judicial duel was permitted between a Christian
and a Jew or a Saracen,452 while in Castile both combatants had to be
gentlemen, quarrels between parties of different ranks being settled by the
courts.453 On the other hand, in Wales, extreme difference of rank was held
to render the duel necessary, as in cases of treason against a lord, for there
the lord was plaintiff against his vassal, and as no man could enter into law
with his lord, the combat was considered the only mode of prosecution
befitting his dignity.454
A question of this nature was the remote occasion of the murder of
Charles the Good, Count of Flanders, in 1127. Bertulf, Provost of the
church of Bruges, was rich and powerful, although in reality his family
were villeins of the count. He married his nieces to knights, one of whom,
in presence of the count, appealed another knight to battle. The appellee
refused on the ground that he was not obliged to notice the challenge of a
villein, for according to the law of the land a freeman marrying a serf was
reduced to the latter condition after the expiration of a year. The Count’s
attention being thus called to his rights over the family of Bertulf, he
proceeded to establish them, when Bertulf set on foot the conspiracy which
ended in the assassination of the count.455

There were three classes—women, ecclesiastics, and those suffering
under physical incapacity—with whom personal appearance in the lists
would appear to be impossible. When interested in cases involving the
judicial duel they were therefore allowed the privilege of substituting a

champion, who took their place and did battle for the justice of their cause.
So careful were legislators to prevent any failure in the procedure
prescribed by custom, that the North German law provided that the dead
when prosecuted could appear in the lists by substitutes,456 and the Assises
de Jerusalem ordered the suzerain to supply the expenses for forty days,
when a suitor unable to fight was also too poor to pay for a champion to
take his place; and when a murdered man left no relatives to prosecute the
murderer, the suzerain was likewise obliged to furnish the champion in any
trial that might arise.457 Equally directed to the same purpose was the
German law which provided that when a crippled defendant refused or
neglected to procure a substitute, the judge was to seize one-half of his
property with which to pay the services of a gladiator, who could claim
nothing more.458 Guardians of women and minors, moreover, were bound
to furnish battle in their behalf.459
Women, however, did not always restrict themselves to fighting thus
vicariously. The German laws refer to cases in which a woman might
demand justice of a man personally in the lists, and not only are instances
on record in which this was done, as in a case at Berne in 1228, in which
the woman was the victor,460 but it was of sufficiently frequent occurrence
to have an established mode of procedure, which is preserved to us in all its
details by illuminated MSS. of the period.461 The chances between such
unequal adversaries were adjusted by placing the man up to the navel in a
pit three feet wide, tying his left hand behind his back, and arming him only
with a club, while his fair opponent had the free use of her limbs and was
furnished with a stone as large as the fist, or weighing from one to five
pounds, fastened in a piece of stuff. A curious regulation provided the man
with three clubs. If in delivering a blow he touched the earth with hand or
arm he forfeited one of the clubs; if this happened thrice his last weapon
was gone, he was adjudged defeated, and the woman could order his
execution. On the other hand, the woman was similarly furnished with three
weapons. If she struck the man while he was disarmed she forfeited one,
and with the loss of the third she was at his mercy, and was liable to be
buried alive. According to the customs of Freisingen these combats were
reserved for accusations of rape. If the man was vanquished, he was
beheaded; if the woman, she only lost a hand, for the reason that the
chances of the fight were against her.462 In Bohemia, also, women over the

age of eighteen had the privilege of the duel; the man was put into a pit as
deep as his waist; the woman was armed with sword and buckler, but was
not allowed to approach nearer than a circle traced around the mouth of the
pit.463
The liability of ecclesiastics to the duel varied with the varying relations
between the church and state. As early as the year 819, Louis le
Débonnaire, in his additions to the Salic law, directs that, in doubtful cases
arising between laymen and ecclesiastics, the duel between chosen
witnesses shall be employed, but that when both parties are clerical it shall
be forbidden.464 This restriction was not long observed. A decree of the
Emperor Guy, in 892, gives to churchmen the privilege of settling their
quarrels either by combat or by witnesses, as they might prefer;465 and,
about the year 945, Atto of Vercelli complains that the tribunals allowed to
ecclesiastics no exemption from the prevailing custom.466 As we have seen
(p. 131), Otho II., at the Council of Verona in 983, subjected the churches to
the law of the duel, only granting them the privilege of employing
champions. Some intricate questions involved in the coexistence of the
Lombard and the Roman law arose in a celebrated case between the Abbey
of Farfa and that of SS. Cosmo and Damianus of Rome, which was pleaded
in 998 and 999 before Otho III. and Popes Gregory V. and Sylvester II. The
Abbey of Farfa proved that it lived under the Lombard law, while the other
was under the Roman law. It was decided, as the Abbey of Farfa desired,
that after hearing testimony the case should be settled by the duel, but the
witnesses of the Roman abbey were so manifestly perjured that it was held
not to have made out a case justifying an appeal to the combat, and the
churches in dispute were adjudged to Farfa.467
So far was this liability to the duel from being deemed a hardship by the
turbulent spirits of the period, that clerks not infrequently disdained to
sustain their rights by the intervention of a champion, and boldly entered
the lists themselves. In 1080 the Synod of Lillebonne adopted a canon
punishing by a fine such belligerent churchmen as indulged in the luxury of
duels without having first obtained from their bishops a special license
authorizing it.468 About the same period, Geoffrey, Abbot of Vendôme, in a
letter to the Bishop of Saintes, complains of one of his monks who had
fought in a judicial duel with a clerk of Saintes.469 The practice continued,

and though forbidden by Pope Innocent II. in 1140,470 Alexander III. and
Clement III. found it necessary to repeat the prohibition before the close of
the century.471 Yet Alexander, when appealed to with respect to a priest of
the Campagna who had lost a finger in a duel, decided that neither the
offence nor the mutilation debarred him from the exercise of his sacerdotal
functions, and only directed him to undergo due penance.472 The progress
of the age, however, was shown when, about thirty years afterwards,
Celestin III. pronounced sentence of deposition in a similar case submitted
to him;473 and this was formally and peremptorily confirmed by Innocent
III. at the great council of Lateran in 1215.474
That the peaceful ministers of Christ should vindicate their rights with
the sword, either personally or by proxy, was a sacrilege abhorrent to pious
minds. As early as the middle of the ninth century, Nicholas I., who did so
much to establish the supremacy of the church, endeavored to emancipate it
from this necessity, and declared that the duel was not recognized by
ecclesiastical law.475 The utmost privilege which the secular law accorded
the clergy, however, was the right of presenting a champion in the lists,
which zealous churchmen naturally resented as an arbitrary injustice.476
How thoroughly it was carried out in practice, notwithstanding all
remonstrances, is shown by a charter granted in 1024 by St. Stephen of
Hungary to the monastery of St. Adrian of Zala, by which, among other
privileges, the pious king bound himself to supply a champion in all suits
against the abbey, in order that the holy meditations of the monks might not
be interrupted.477 Not long after, in 1033, the celebrated abbey of St.
Clement at Pescara was involved in a dispute concerning some lands which
had been cut off from its possessions by a change in the course of the river
Pescara, and had been seized by the lords of the contiguous territory. At an
assembly of the magnates of the district it was adjudged that the matter
must be settled by the duel. The night before the combat was to take place
the holy abbot Guido, after enjoining earnest prayers by all the monks,
sallied forth alone to the banks of the stream and stretching forth his staff
adjured the waters to repair the evil which they had wrought under the
impulsion of the devil. The river forthwith returned to its old channel, and
next morning the multitude which assembled to witness the combat were
astounded to see the miracle. The godless men who had seized on the

possessions of the church humbly sought pardon for their sin, and the abbey
remained in quiet enjoyment of its rights.478
The scandal of maintaining the claims of the church by carnal weapons
and bloodshed was not soon suppressed. In 1112 we find a certain
Guillaume Maumarel, in a dispute with the chapter of Paris concerning
some feudal rights over the domain of Sucy, appearing in the court of the
Bishop of Paris for the purpose of settling the question by the duel, and
though the matter was finally compromised without combat, there does not
seem to have been anything irregular in his proceeding.479 So, about the
same period, in a case between the abbey of St. Aubin in Anjou and a
neighboring knight, involving some rights of property, the monks not only
challenged their adversary, but the duel was held in the seignorial court of
another monastery;480 and in 1164, we find a duel decreed at Monza, by the
Archbishop of Cologne as chancellor of Italy, between an abbey and a
layman of the vicinity.481 That such cases, indeed, were by no means
uncommon is shown by their special prohibition in 1195 by Celestin III.482
Yet, notwithstanding the repeated efforts of the Holy See, it was almost
impossible for the church to exempt itself from the universal liability.
Though in 1174 Louis VII. granted a special privilege of exemption to the
church of Jusiers and its men, on the ground that he was bound to abrogate
all improper customs,483 still no general reform appears to have been
practicable. An important step was gained when in 1176 Henry II., as a
concession to the papacy, agreed that ecclesiastics should not be forced to
the duel,484 but this did not extend to the Scottish Marches, where by law an
ecclesiastic was as liable as a layman to personal appearance in the lists; if
he presented a champion he was held in custody till the event of the duel,
when, if the champion was defeated, his principal was promptly beheaded.
Innocent III. sternly prohibited this in 1216, but ineffectually, as is seen by a
complaint of the English clergy, in 1237, in which they mention the case of
the Prior of Lide, who had thus recently suffered the penalty. This was
equally fruitless, for the Leges Marchiarum, enacted in 1249, declare that
exemption from battle is confined to the persons of the kings and of the
Bishops of St. Andrews and Durham.485
In France, during the thirteenth century, the liability continued. In 1239 a
knight of Orleans, Gui de Santillac, testified before the royal council that

the chapter of Saint-Aignan had appealed him in wager of battle.486 As late
as the year 1245, some vassals of the chapter of Nôtre Dame at Paris denied
the service due by them, and demanded that the claim of the chapter should
be made good by the wager of battle. That they had a legal right to do so is
shown by the fact that the churchmen were obliged to implore the
intervention of the pope; and Innocent IV. accordingly granted to the
chapter a special privilege, in which, on the ground that single combats
were forbidden by the canons, he declared that the church of Nôtre Dame
should be entitled to prove its rights by witnesses, deeds, and other
legitimate proofs, notwithstanding the custom existing to the contrary.487 It
was probably his interference in this case that led him a few years later, in
1252, to issue a decretal in which he pointed out the manifest hardship of
forcing the clergy in France, when prosecuting such claims against their
serfs, to have recourse to the duel, and thus, under the canon law, to forfeit
their positions. To remedy this he proclaimed as a general rule that all
verdicts should be void when obtained against clerks either by means of the
duel or through reason of their refusing the combat;488 yet in the following
year he was obliged to intervene to protect the Archbishop of Sens, who
complained that in these cases he was obliged to make good his claims by
battle.489 In this, Innocent was consistent, for one of the accusations which
he had brought against the Emperor Frederic II. when the latter was
deposed at the Council of Lyons in 1245 was that he had forced
ecclesiastics to undergo the duel, to the confusion of all distinctions
between clerk and layman.490 Even in Italy about 1220 the podestà of
Florence ordered the duel to decide a suit concerning certain property
between some citizens and the church of the Apostles; the latter invoked the
intervention of Honorius III., who commanded the matter to be settled by
regular judicial process, boldly alleging that the duel was unheard of in such
matters,491 but in spite of this and the repeated prohibitions of the popes,
trial by combat was still towards the close of the thirteenth century regarded
as the only mode of settling disputed questions between churches when the
genuineness of a charter was impugned.492 Yet at the same period the
doctors of canon law held that an ecclesiastic appearing in the lists, either
personally or by a champion, was subject to deposition; it was better, they
said, to lose lands and fiefs than to incur mortal sin. Unfortunately this was
scarce more than a mere brutum fulmen, for a dispensation could always be

had from bishop or pope.493 Custom was stubborn, moreover, and half a
century later, when the judicial duel was going out of fashion, a bishop of
Liége so vexed the burghers of Louvain, by repeated citations to the combat
to settle disputed questions, that John III. Duke of Brabant was obliged to
appeal to the Emperor Charles IV., who accordingly wrote to the bishops of
Trèves, Cambrai, and Verdun desiring them to find some means of putting
an end to the bellicose tendencies of their episcopal brother.494
These sporadic cases only show how difficult it was throughout the
whole extent of Christendom to eradicate a custom so deeply rooted in
ancestral modes of thought. By the middle of the thirteenth century the
church had succeeded in virtually establishing the claim, for which it had
long striven, that ecclesiastics were not subject to secular law in either civil
or criminal matters. This exemption of course released them from liability
to the duel and placed them exclusively under spiritual jurisdiction, in
which the strongly marked papal aversion to the duel had full opportunity
of making itself effective.495
Another phase of the relations between the church and the duel is to be
seen in the extensive secular jurisdiction of its prelates in their capacity as
temporal seigneurs. In this they were accustomed to award the duel as
freely as any other form of legal procedure. To do this was not only one of
the privileges which marked the feudal superior, but was also a source of
revenue from the fees and penalties thence accruing, and these rights were
as eagerly sought and as jealously guarded by the spiritual lords as by the
warlike barons. It would scarce be necessary to multiply instances, but I
may mention a charter granted by Fulk Nera, Count of Anjou, about the
year 1010, bestowing these rights on the abbey of Beaulieu in Touraine,496
and one by the Emperor Henry III., in 1052, to the bishop and church of
Volterra in Italy.497 The first authentic evidence of the existence of the
battle trial in Scotland is a charter of Alexander I. in 1124 to the Abbey of
Scone, in which he bestows on the abbot and monks the right to grant the
duel and ordeal in their jurisdiction; and his brother, St. David I., conferred
the same rights on the Abbey of Holyrood.498 Some conscientious
churchmen objected to a practice so antagonistic to all the teachings of the
religion of which they were professors, and lifted up their voices to check
the abuse. Thus, about the close of the eleventh century, we find the

celebrated canonist, St. Ivo of Chartres, rebuking the Bishop of Orleans for
ordering the combat to decide an important suit in his court.499 Ivo even
carried out his principles to the sacrifice of the jurisdiction usually so dear
to the prelates of his day, for in another case he refused to give judgment
because it necessarily involved a trial by battle, and he eluded the
responsibility by transferring the cause to the court of the Countess of
Chartres.500 A century later Peter Cantor declared that as a priest he would
in no case furnish relics on which the preliminary oaths were to be taken,
for churchmen were prohibited from being concerned in bloodshed.501
These precepts and examples were equally unavailing. Churchmen
continued to award the wager of battle, and resolutely resisted any invasion
of their privileges. In 1150 the statutes of the chapter of Lausanne direct
that all duels shall be fought before the provost—and the provost was
Arducius, Bishop of Geneva.502 In 1201 we see the Abbot of St. Alban’s
and the Abbot of Westminster pleading as to their rights over the manor of
Aldenham, including that of the duel.503 Even in the thirteenth century, in
the archbishop’s court or officiality of Reims, the duel was a matter of
course;504 and a case is recorded, occurring in 1224, in a dispute about the
ownership of a house, which was decided by a duel in the court of the
abbey of St. Remy, where the abbot presided over the lists and they were
guarded by the royal officials.505 In 1239 the Bishop of Orleans contested
with the king as to the right of the former to the jurisdiction of the duel in
his diocese;506 and in a judgment rendered in 1269, concerning a combat
waged within the limits of the chapter of Nôtre Dame of Paris, we find that
the first blows of the fight, usually known as ictus regis or les cous lou roi,
are alluded to as ictus capituli.507 How eagerly these rights were maintained
is apparent from numerous decisions concerning contested cases. Thus, an
agreement of 1193, between the Countess of St. Quentin and the chapter of
Nôtre Dame, respecting the disputed jurisdiction of the town of Viry, gives
the official of the chapter the right to decree duels, but places the lists under
the supervision of both parties, and divides the spoils equally between
each.508 A charter of 1199, concerning the village of Marne, shows that the
sergeant, or officer of the chapter, had the cognizance of causes up to the
gaging of battle, after which further proceedings were reserved for the court
of the bishop himself.509 In 1219 the commune of Novara arrogated to itself
the right of decreeing the duel, but the bishop resisted this invasion of his

privileges, and on the matter being referred for arbitration to the Bishop of
Turin he decided in favor of his episcopal brother. The Bishop of Modena
had a long and expensive suit with his city on the same question, which
ended in 1227 with a compromise by which he abandoned the right; the
Bishops of Vercelli were more fortunate, for they maintained it until the
beginning of the fourteenth century, when judicial duels were going out of
fashion.510 In 1257, while St. Louis was exerting himself with so much
energy to restrict the custom, an abbey is found engaged in a suit with the
crown to prove its rights to decree the duel, and to enjoy the fees and mulcts
thence arising;511 and in 1277 a similar suit on the part of the abbey of St.
Vaast d’Arras was decided in its favor.512 From a verdict given in 1293, the
right of the chapter of Soissons to decree the judicial combat appears to be
undoubted, as well as the earnestness of the worthy ecclesiastics to exercise
the privilege.513 Even more significant is a declaration of the authorities of
Metz, as late as 1299, by which the granting of all wagers of battle is
expressly admitted by the civil magistrates of the city to appertain to the
court of the archbishop;514 and even in 1311 a bishop of St. Brieuc ordered
a duel between two squires pleading in his court, in consequence of high
words between them. From some cause the combat did not take place, and
the Christian prelate seized the arms and horses of the parties as his mulct.
They appealed to the Parlement of Paris, which ordered the restoration of
the confiscated articles, and fined the bishop for his disregard of the royal
edicts prohibiting the single combat.515 Not long before, Beaumanoir had
definitely asserted that the church could not be concerned in cases which
involved the judicial duel, or the infliction of death or mutilation;516 but the
church was not disposed to admit this limitation on its jurisdiction, and in
spite of the attempted suppression of the wager of battle by the crown it
continued in its multifarious capacity of seigneur to execute the cruel laws
of the period with undiminished activity.517
In other lands, where the duel had not experienced as in France the
hostility of the supreme power, prelates continued to decree it, regardless of
the papal anathemas. It was to no purpose that canon lawyers proved that
they thereby incurred mortal sin, and that if death ensued they became
“irregular” and incompetent to perform divine service. To all this they
turned a deaf ear, and John of Freiburg, towards the close of the thirteenth

century, is reduced to wishing that preachers would expound these
principles in the pulpit and make them understood by the people at large.518

There was one jurisdiction which held itself more carefully aloof from
the prevailing influence of barbarism—that of the Admiralty Courts, which
covered a large portion of practical mercantile law. This is a fact easily
explicable, not only from the character of the parties and of the transactions
for which those courts were erected, but from the direct descent of the
maritime codes from the Roman law, less modified by transmission than
any other portions of mediæval jurisprudence. These codes, though
compiled at a period when the wager of battle flourished in full luxuriance,
have no reference to it whatever, and the Assises de Jerusalem expressly
allude to the Admiralty Courts as not admitting the judicial duel in proof,519
while an English document of 12 Edward III. attests the same principle.520
When, however, the case was one implying an accusation of theft or
deception, as in denying the receipt of cargo, the matter entered into the
province of criminal law, and the battle trial might be legitimately
ordered.521

CHAPTER VI.
REGULATIONS OF THE JUDICIAL COMBAT.

The forms and ceremonies employed in the judicial duel may furnish an
interesting subject of investigation for the admirers of chivalry, but they
teach in their details little concerning the habits and modes of thought of the
Middle Ages, and for the most part are therefore interesting only to the pure
archæologist. Although minute directions have come down to us in the
manuals compiled for the guidance of judges of the lists, to enumerate them
in their varying fashions would hardly be worth the necessary space. Yet
there are some details which are of interest as illustrating both the theory
and practice of the duel in its legal aspect. Thus the general principle on
which the combat was conducted was the absolute assertion by each party
of the justice of his cause, confirmed by a solemn oath on the Gospels, or
on a relic of approved sanctity, before the conflict commenced.522 Defeat
was thus not merely the loss of the suit, but was also a conviction of
perjury, to be punished as such; and in criminal cases it was also a
conviction of malicious prosecution on the part of a worsted appellant. That
it was regarded as much more serious than the simple loss of a suit is shown
by the provisions of the custom of Normandy, whereby a vanquished
combatant was classed with perjurers, false witnesses, and other infamous
persons, as incapable thenceforth of giving evidence in courts, or of serving
on a jury.523 Accordingly, we find the vanquished party, whether plaintiff or
defendant, subjected to penalties more or less severe, varying with time and
place.
This was a primeval custom, even in civil cases. In the ancient laws of
the Alamanni, when there was controversy as to the ownership of land, the
contestants brought to the court of the district some earth and branches of
trees from the disputed property. These were wrapped and sealed and placed
in the lists, where the combatants touched the bundle with their swords and
called upon God to grant victory to the right; the land passed to the victor
and the defeated party was fined twelve sous for having made an unjust
claim.524 The tendency, as civilization advanced, was to render the penalty
more severe. Thus, in 819, Louis le Débonnaire decreed that, in cases where
testimony was evenly balanced, one of the witnesses from each side should

be chosen to fight it out, the defeated champion suffering the usual penalty
of perjury—the loss of a hand; while the remaining witnesses on the losing
side were allowed the privilege of redeeming their forfeited members at the
regular legal rate.525 William the Conqueror imposed a fine of forty sous on
the losing side impartially;526 this was increased to sixty sous by the
compilation known as the laws of Henry I.;527 and the same regulation is
stated by Glanville, with the addition that the defeated person was forever
disqualified as a witness or champion;528 but in practice the amount seems
to have been indefinite, for in the Pipe Rolls the fines levied for recreantise
vary from one mark to a hundred.529 In a case occurring in 1221 where the
defendant was victorious the record simply states that the appellant was
ordered into custody;530 while in the time of Edward II. the loser, except in
cases of felony, paid to the victor forty sous besides a small gratification
under the name of ruaille, in addition to the loss of the suit.531 By the
Lombard customs, early in the eleventh century, the appellant, if
vanquished, had the privilege of redeeming his hand; the defendant, if
defeated, lost his hand, and was of course subject in addition to the
penalties of the crime of which he was proved guilty.532 About the same
time the Béarnese legislation is more merciful, a fine of sixty-six sous
Morlaas being imposed impartially on the losing party.533 In process of time
this system was abandoned in some countries. The English law of the
thirteenth century admitted the justice of the lex talionis in principle, but did
not put it in practice, a vanquished appellant in capital cases being merely
imprisoned as a calumniator, while the defendant, if defeated, was executed
and his property confiscated.534 The same distinction is to be found in the
contemporary custom of Normandy.535 So, by the code in force in Verona in
1228, the Podestà in criminal cases had the power of ordering the duel, and
of punishing at his pleasure the accuser if vanquished—the accused when
convicted of course undergoing the penalty of his crime.536 Towards the end
of the thirteenth century, however, there were some sceptics in Italy who
argued that conviction by the duel ought not to entail the same punishment
as conviction by witnesses “quia pugna est incertum Dei judicium.” This
struck directly at the root of the whole system, and Roffredo insists that the
legal penalty is to be enforced.537

Mediæval legislation was not usually lenient to a worsted appellant. The
application of the lex talionis to the man who brought a false charge, thus
adjudging to him the penalty which was incurred by the defendant if
convicted, was widely current during the Middle Ages. This principle is to
be found enunciated in the broadest and most decided manner in the
ecclesiastical law,538 and it was naturally brought into play in regulating the
fate of those engaged in the wager of battle. Thus Guillaume le Breton
states that when Philip Augustus, in 1203, wrested Normandy from the
feeble grasp of John Lackland, one of the few changes which he ventured to
introduce in the local laws of the duchy was to substitute this rule of
confiscation, mutilation, or death, according to the degree of criminality
involved in the accusation, for the comparatively light pecuniary mulct and
loss of legal status previously incurred by a worsted appellant.539 The same
system is followed throughout the legislation of St. Louis, whether the
punishment be light or capital, of an equal responsibility on both parties.540
In capital cases, when champions were employed, the principals were held
in prison with the cord around them with which the defeated party was to be
hanged; and if one were a woman, for the cord was substituted the spade
wherewith she was to be buried alive.541 The same principle of equal
responsibility prevailed throughout the Frankish kingdoms of the East,
where, in an appeal of murder, as we have seen, the appellant fought by
means of one of his witnesses, and the defendant personally. In civil cases,
in the Bourgeois Court, the party defeated, including the plaintiff, if his side
was the loser, was forever debarred from giving testimony, and had no
future standing in court; while in serious criminal cases, in both upper and
lower courts, either side, when defeated, was hanged with the utmost
impartiality;542 and it finally established itself in England, where in the
fourteenth century we find it positively declared as an imperative regulation
by Thomas, Duke of Gloucester, in an elaborate treatise on the rules of
single combat printed by Spelman.543
In Germany the custom was not uniform. In the Sachsenspiegel, and in
one text of the Schwabenspiegel, the principle is laid down that a defeated
appellant escaped with a fine to the judge and to his adversary, while the
defendant, if vanquished, was visited with the punishment due to his crime,
or even with a heavier penalty;544 while the Saxon burgher law and another
text of the Suabian code direct that whichever party be defeated should lose

a hand, or be executed, according to the gravity of the crime alleged.545 An
exceptional case, moreover, was provided for, in which both antagonists
might suffer the penalty; thus, when a convicted thief accused a receiver of
stolen goods of having suggested the crime, the latter was bound to defend
himself by the duel, and if defeated, both combatants were hanged without
further ceremony.546 That these penalties were not merely nominal is shown
by a case which occurred at Frankfort in 1369, when the divine interference
was requisite, not to determine the victor, but to evade the enforcement of
the law. Two knights, Zierkin von Vola and Adolf Hanche, who had married
two sisters, quarrelled over the inheritance of a deceased brother-in-law, and
agreed to settle their difference by the duel. When the appointed day came,
October 12, they entered the lists on their chargers, prepared to do battle to
the death, while their pious wives were earnestly praying God to soften
their hearts and incline them to peace. These prayers were heard. With a
mutual impulse the two warriors leaped from their horses, throwing
themselves into each other’s arms and exclaiming, “Brother, I confess
myself vanquished.” The chief magistrate of the city, who presided over the
combat, was not disposed to deprive the spectators of their promised
entertainment, and indignantly declared that the law of the duel did not
permit both antagonists to depart unhurt, for the one who yielded must be
put to death; and he confirmed this sentence by a solemn oath that one or
the other should die before he would taste food. Then an affecting contest
arose between the late antagonists, each one proclaiming himself the
vanquished and demanding the penalty on his own head, when suddenly
divine vengeance visited the bloody and remorseless judge, who fell dead,
thus fulfilling his impious vow that he would not eat until he had a
victim.547
It was probably as an impressive symbol of the penalties affixed by law
to defeat in these combats that in some places the suggestive custom was in
force of placing in the lists two biers in readiness for their ghastly
occupants. In a duel which occurred at Augsburg in 1409, between two men
named Marschalck and Hachsenacker, the former threw his adversary on
the ground, and then asked him what he would have done had he been the
victor. Hachsenacker grimly replied that he would have slain his foe,
whereupon Marschalck despatched him, and placing himself in his bier

caused himself to be carried to the church of St. Ulric, where he returned
thanks for his victory.548
The most hideous exaggeration of the system, however, was found in the
Frankish kingdoms of the East, which reserved a special atrocity for women
—one of the numerous instances to be observed in mediæval law of the
injustice applied habitually to the weaker sex. When a woman appeared,
either as appellant or defendant, in the lists by her champion, if he was
defeated she was promptly burnt, no matter what was the crime for which
the duel occurred—and as many accusations could only be determined by
the wager of battle, she had no choice but to undergo the chance of the most
dreadful of deaths.549
It was not customary to order the combat to take place immediately, but
to allow a certain interval for the parties to put their affairs in order and to
undergo the necessary training. In Southern Germany this delay was for
nobles from four to six weeks, and for others a fortnight, and during this
period any assault by one on the other was a capital offence.550 They were
required to give security for their due appearance at the appointed time,
various fines and punishments being inflicted on defaulters. By the law of
both Northern and Southern Germany, when default was made by the
defendant he was held guilty of the crime charged upon him: and if he was
allowed the privilege of redeeming hand or life either as defendant or
appellant, he was declared infamous, and deprived of the protection of the
law. According to some MSS., indeed, all the possessions of a defaulter
were forfeited, either to his heirs or to his feudal superior.551 In a case
occurring in the twelfth century in Hainault, between a seigneur and a man
whom he claimed as a serf, the latter demanded the duel, which was
allowed, but on the appointed day he failed to appear by nine o’clock. His
adversary had waited for him since daybreak, and claimed the verdict which
was awarded him by the council of Hainault. At this moment the missing
man presented himself, but was adjudged to be too late, and was delivered
to his claimant as a serf. According to the custom of Flanders, indeed, the
combatant who failed to appear suffered banishment, with confiscation of
all his possessions.552 This extreme rigor, however, did not obtain
universally. Among the Béarnese, for instance, the forfeiture for a default
was only sixteen sous Morlaas.553 By the English law, the defaulter was

declared infamous, and was also liable to a fine to the king, for which there
was apparently no fixed amount.554 The Scandinavians punished him
popularly by erecting a “nithstong”—pertica execrationis—a post inscribed
with defamatory runes, and so flagrant was this insult considered, that
finally it was prohibited by law under pain of exile.555 Perhaps the most
emphatic assertion, however, of the obligation to appear is the rule in the
law of the Scottish Marches in 1249, that if the accused should die before
the appointed day his body must be brought to the lists, “for no man can
essoin himself by death.”556
The bail, of course, was liable for all legal penalties incurred by a
defaulter, and occasionally, indeed, was made to share the fate of his
principal, when the latter appeared and was defeated. In the law of Southern
Germany, according to one text, the bail under these circumstances was
liable to the loss of a hand, which, however, he could redeem, while another
version makes him suffer the penalty incurred by his principal.557 This latter
rule is announced in a miracle play of the fourteenth century, where a
stranger knight at the court of Paris, compelled to fight in defence of the
honor of the king’s daughter, is unable to find security. The queen and
princess offer themselves as hostages and are accepted, but the king warns
them—
Dame, par Dieu le roy celestre!
Bien vous recevray pour hostage;
Mais de tant vous fas-je bien sage,
Se le dessus en peut avoir
Ardré, je vous feray ardoir.
Et mettre en cendre.558
Poverty on the part of one of the combatants, rendering him unable to
equip himself properly for the combat, was not allowed to interfere with the
course of justice. In such cases, under the law of Northern Germany, the
judge was required to provide him with the requisite weapons.559 In
England, where the royal jurisdiction embraced all criminal cases, the king
furnished the weapons and paid all expenses, and when the combatant was
an “approver,” or criminal who had turned state’s evidence, he was
supported until his duty was accomplished of fighting all whom he accused

as accomplices. Thus in the accounts of the sheriff of Lincolnshire for 1190,
there is an entry of 15s. 10d. for the approver Adam Godechap from Pask
until Michaelmas at one penny per diem; also 6s. for his armor in three
duels, and 38s. 6d. for carts to convey prisoners, sureties, and probators
from Lincoln to London and elsewhere.560 The crown likewise paid the
expenses of administering the other ordeals: in 1166 a single entry in the
Exchequer accounts shows payment for thirty-four ordeals and five
battles.561
As regards the choice of weapons, much curious anecdote could be
gathered from the pages of Brantôme and others learned in punctilio,
without throwing additional light upon mediæval customs. It may be briefly
observed, however, that when champions were employed on both sides, the
law appears generally to have restricted them to the club and buckler, and to
have prescribed perfect equality between the combatants.562 An ordonnance
of Philip Augustus, in 1215, directs that the club shall not exceed three feet
in length.563 In England the club or battoon was rendered more efficient
with a “crook,” usually of horn, but sometimes of iron, giving to the
weapon the truly formidable aspect of a pickaxe or tomahawk.564 When the
principals appeared personally, it would seem that in early times the
appellant had the choice of weapons, which not only gave him an enormous
advantage, but enabled him to indulge any whims which his taste or fancy
might suggest, as in the case of a Gascon knight in the thirteenth century,
who stipulated that each combatant should be crowned with a wreath of
roses. As every detail of equipment was thus subject to the caprice of the
challenger, those who were wealthy sometimes forced their poorer
adversaries to lavish immense sums on horses and armor.565 When,
however, the spirit of legislation became hostile to the wager of battle, this
advantage was taken from the appellant. Frederic II. appears to have been
the first to promulgate this rational idea, and, in decreeing that in future the
choice of arms shall rest with the defendant, he stigmatizes the previous
custom as utterly iniquitous and unreasonable.566 In this, as in so many
other matters, he was in advance of his age, and the general rule was that
neither antagonist should have any advantage over the other, except the
fearful inequality, to which allusion has already been made, when a roturier
dared to challenge a gentleman.567 In the law of Northern Germany care

was taken that the advantage of the sun was equally divided between the
combatants; they fought on foot, with bare heads and feet, clad in tunics
with sleeves reaching only to the elbow, simple gloves, and no defensive
armor except a wooden target covered with hide, and bearing only an iron
boss; each carried a drawn sword, but either might have as many more as he
pleased in his belt.568 Even when nobles were concerned, who fought on
horseback, it was the rule that they should have no defensive armor save a
leather-covered wooden shield and a glove to cover the thumb; the weapons
allowed were lance, sword, and dagger, and they fought bare-headed and
clad in linen tunics.569 According to Upton, in the fifteenth century, the
judges were bound to see that the arms were equal, but he admits that on
many points there were no settled or definite rules.570 In Wales, an
extraordinary custom violated all the principles of equality. Under the
Welsh law, twins were considered as one person, and as they were entitled
to but one share in the patrimony of the family, so they were allowed to
come into the field of combat as one man.571 In Russia, each combatant
followed his own pleasure; and a traveller in the sixteenth century relates
that the Muscovites were in the habit of embarrassing themselves with
defensive armor to an extent which rendered them almost helpless, so that
in combats with Poles, Lithuanians, and Germans they were habitually
worsted, until judicial duels between natives and foreigners were at length
prohibited on this account.572
As a general rule the combat ended at sunset or when the stars became
visible, and in such case if it was a drawn battle the case was decided in
favor of the defendant, because the prosecutor had not proved his charge.
Yet a charter of 961 recites that two gentlemen, Bernard and Gerbert,
appeared before Count Raymond, each claiming the church of St. Médard
and its appurtenances, which had been bequeathed by the late owner
Ricaud, for the repose of his soul, to the Abbey of St. Peter of Beaulieu. The
count granted them the trial by battle. At two o’clock their champions
entered the lists and fought without result until sunset. Then the count
declared the battle ended and adjudged the church to the abbey; the
contestants acquiesced and signed the charter confirming its rights.573 In
Italy, however, the duel was fought to an end; if stopped by darkness the
judge was instructed to note carefully the respective positions of the

combatants and replace them exactly the next morning, so that neither
might derive advantage from the adjournment.574
The issue at stake being death or dishonor, with severe penalties hanging
over the vanquished, whether principal or champion, no chivalric courtesy
was to be expected in these combats. They were fought to the bitter end
with persistent and brutal ferocity, resembling the desperate encounters of
wild beasts. A fairly illustrative example is furnished in an incident which
followed the assassination of Charles the Good of Flanders in 1127. One of
the accomplices, a knight named Guy, was challenged for complicity by
another named Herman. Both were renowned warriors, but Herman was
speedily unhorsed by his adversary, who with his lance frustrated all his
attempts to remount. Then Herman disabled the horse of his opponent and
the combat was renewed on foot with swords. Equally skilful in fence they
continued the struggle till fatigue compelled them to drop sword and shield
and they wrestled for the mastery. Guy threw his antagonist, fell on him and
beat him in the face with his gauntlets till he seemed to be motionless, but
Herman quietly slipped his hand below the other’s coat of mail, grasped his
testicles and with a mighty effort wrenched them away. Guy fell over and
expired; he we adjudged guilty and his body, after exposure in the pillory,
was hung on the top of a mast along with that of the leader of the
conspiracy who had been executed the same day, the two corpses being
made to embrace each other, as though conferring about the plot.575 Ghastly
details such as these serve to emphasize the difference between the judicial
combat and the modern duel.

CHAPTER VII.
CHAMPIONS.

Allusions have occurred above to the employment of champions, a
peculiarity of these combats which received an application sufficiently
extended to deserve some special notice.576 It has been seen that those
unable to wield the sword or club were not therefore exempted from the
duel, and even the scantiest measure of justice would require that they
should have the right to delegate their vindication to some more competent
vehicle of the Divine decision. This would seem originally to have been the
office of some member of the family, as in the cognate procedure of
sacramental purgation. Among the Alamanni, for instance, a woman when
accused could be defended by a kinsman cum tracta spata;577 the same rule
is prescribed by the Lombard law,578 and by that of the Angli and Werini;579
while the universal principle of family unity renders the presumption fair
that it prevailed throughout the other races in whose codes it is not
specifically indicated. Restricted to cases of disability, the use of champions
was a necessity to the battle ordeal; but at a very early period the practice
received a remarkable extension, which was directly in conflict with the
original principles of the judicial duel, in permitting able-bodied antagonists
to put forward substitutes, whether connected with them or not by ties of
blood, who fought the battle for their principals. With regard to this there
appears to have been a considerable diversity of practice among the races of
primitive barbarians. The earliest Frisian laws not only grant unlimited
permission for their employment, but even allow them to be hired for
money.580 The laws of the Franks, of the Alamanni, and of the Saxons make
no allusion to such a privilege, and apparently expect the principal to
defend his rights himself, and yet an instance occurs in 590, where, in a
duel fought by order of Gontran, the defendant was allowed to intrust his
cause to his nephew, though, as he was accused of killing a stag in the
king’s forest, physical infirmity could hardly have been pleaded.581 From
some expressions made use of by St. Agobard, in his onslaught on the
ordeal of battle, we may fairly presume that, under Louis le Débonnaire, the
employment of champions, in the Burgundian law, was, if not forbidden, at
least unusual as respects the defendant, even in cases where age or debility

unfitted him for the combat, while it was allowed as a matter of course to
the appellant.582 On the other hand, the Baioarian law, which favored the
duel more than any of the other cognate codes, alludes to the employment
of champions in every reference to it, and with the Lombards the judicial
combat and the champion seem to have been likewise convertible terms
even with regard to defendants.583 In a charter of the latter half of the tenth
century in France, recording a judicial duel to decide a contest concerning
property, the judge, in ordering the combat, calls upon the antagonists to
produce skilled champions to defend their claims at the time and place
indicated, which would show that the principals were not expected to
appear personally.584 Under the North German law it rested with the
appellant to demand the duel either with or without champions. If the
defendant were crippled, and was on that account obliged to appear by a
hired champion, then the appellant could put forward another to meet him.
A defendant, moreover, who had suffered a previous conviction for theft or
rapine was always obliged to appear personally. When the duel was decreed
by the court, and not demanded by the appellant, then the accused could
decline it if he could prove that the prosecutor had hired a champion.585 The
practical spirit of the Italians led to the universal substitution of champions
for the principals; they were selected by the magistrates and were paid by
the state when the parties were too poor to bear the expense.586
In all these provisions for the putting forward of substitutes in the duel
there is something so repugnant to the fierce and self-relying spirit in which
the wager of battle found its origin, and the use of a professional gladiator is
so inconsistent with the pious reference to the judgment of God, which was
the ostensible excuse for the duel, that some external reason is required to
account for its introduction. This reason is doubtless to be found in the
liberty allowed of challenging witnesses, to which allusion has already been
made (p. 121). The prevalence of this throughout Western Europe readily
enabled parties, unwilling themselves to encounter the risks of a mortal
struggle, to put forward some truculent bravo who swore unscrupulously,
and whose evidence would require him to be forced out of court at the
sword’s point.
This becomes very evident as early as we have detailed regulations of
procedure in the books of the twelfth and thirteenth centuries. In England,

for instance, until the first statute of Westminster, issued by Edward I., in
1275, the hired champion of the defendant, in a suit concerning real estate,
was obliged to assume the position of a witness, by swearing that he had
been personally present and had seen seizin given of the land, or that his
father when dying had enjoined him by his filial duty to maintain the
defendant’s title as though he had been present.587 This legal fiction was
common also to the Norman jurisprudence of the period, where in such
cases the champion of the plaintiff was obliged to swear that he had heard
and seen the matters alleged in support of the claim, while the opposing
champion swore that they were false.588 In a similar spirit, an earlier code
of Normandy prescribes that champions shall be taken to see the lands and
buildings in dispute, before receiving the oath of battle, in the same manner
as a jury of view.589 We have seen that in the Assises d’Antioche it was
requisite for a prosecutor or a plaintiff to have a witness who was ready to
offer battle, in default of which the unsupported oath of the other party was
sufficient to secure a verdict.590 It necessarily follows that this witness must
in most cases have been a hired champion, and this connection between the
two functions is further shown in the regulation of the Assises de Jerusalem
and of the Sicilian constitutions, which directed that the champion should
swear on the field of battle as to his belief in the justice of the quarrel which
he was about to defend,591 a practice which is also found in the Scottish law
of the thirteenth century.592 An English legal treatise of the period, indeed,
assumes that the principals can put forward only witnesses as substitutes,
and gives as a reason why combats in civil suits were always conducted by
champions, that in such cases the principals could not act as witnesses for
themselves.593 In a similar spirit, if on the field of battle one of the parties
presented a champion who was not receivable as a witness and had not been
accepted by the court, the case could be decided against him by default.594
Looking on the profession of a champion in this light, as that of a witness
swearing for hire, we can find a justification for the heavy penalties to
which he was subjected in case of defeat—penalties of which the real
purport presumably was to insure his fidelity to his principal. Thus, in the
Norman coutumier above referred to, in civil suits as to disputed landed
possessions, the champion swearing to the truth of his principal’s claim
was, if defeated, visited with a heavy fine and was declared infamous, being

thenceforth incapable of appearing in court either as plaintiff or as witness,
while the penalty of the principal was merely the loss of the property in
dispute;595 and a similar principle was recognized in the English law of the
period.596 In criminal cases, from a very early period, while the principal
perhaps escaped with fine or imprisonment, the hired ruffian was hanged, or
at best lost a hand or foot, the immemorial punishment for perjury;597 while
the laws of the Kingdom of Jerusalem prescribe that in combats between
champions, the defeated one shall be promptly hanged, whether dead or
alive.598 The Assises d’Antioche are somewhat more reasonable, for they
provide merely that the vanquished champion and his principal shall suffer
the same penalty, whether simply a forfeiture of civil rights in civil cases, or
hanging as in accusations of homicide or other serious crime.599 That, in the
later periods, at least, the object of this severity was to prevent the
champion from betraying his employer’s cause was freely admitted.
Beaumanoir thus defends it on the ground of the liability of champions to
be bought over by the adverse party, which rendered the gentle stimulus of
prospective mutilation necessary to prevent them from being purchased by
the adversary;600 and it is probably owing to this that the full severity of the
punishment is shown to be still in existence by a charter of so late a date as
1372, when the use of the judicial duel had fully entered on its decline.601
In the same spirit, the Emperor Frederic II. prohibited champions from
bargaining with each other not to use teeth and hands. He commanded them
to inflict all the injury possible on their adversaries, and decreed that they
should, in case of defeat, share the punishment incurred by the principal, if
the judge of the combat should consider that through cowardice or treachery
they had not conducted the duel with proper energy and perseverance.602
With such risks to be encountered, it is no wonder that the trade of the
champion offered few attractions to honest men, who could keep body and
soul together in any other way. In primitive times, the solidarity of the
family no doubt caused the champion in most cases to be drawn from
among the kindred; at a later period he might generally be procured from
among the freedmen or clients of the principal, and an expression in the
Lombard law justifies the assumption that this was habitual, among that
race at least.603 In the palmy days of chivalry, it was perhaps not uncommon
for the generous knight to throw himself bodily into the lists in defence of

persecuted and friendless innocence, as he was bound to do by the tenor of
his oath of knighthood.604 Even as late as the fifteenth century, indeed, in a
collection of Welsh laws, among the modes by which a stranger acquired
the rights of kindred is enumerated the act of voluntarily undergoing the
duel in the place of a principal unable or unwilling to appear for himself.605
A vast proportion of pleaders, however, would necessarily be destitute of
these chances to avoid the personal appearance in the arena for which they
might be unfitted or disinclined, and thus there arose the regular profession
of the paid gladiator. Reckless desperadoes, skilled at quarter-staff, or those
whose familiarity with sword and dagger, gained by a life spent in ceaseless
brawls, gave them confidence in their own ability, might undertake it as an
occupation which exposed them to little risk beyond what they habitually
incurred, and of such was the profession generally composed. This evil
must have made itself apparent early, for we find Charlemagne endeavoring
to oppose it by decreeing that no robber should be allowed to appear in the
lists as a champion, and the order needed to be frequently repeated.606
When the Roman law commenced to exercise its powerful influence in
moulding the feudal customs into a regular body of procedure, and
admiring jurists lost no opportunity of making use of the newly-discovered
treasures of legal lore, whether applicable or not, it is easy to understand
that the contempt and the civil disabilities lavished by the Imperial
jurisprudence on the gladiator of antiquity came to be transferred to the
mediæval champion; although the latter, by the theory of the law, stood
forth to defend the innocent, while the former ignobly exposed his life for
the gratification of an imbruted populace. This legacy of shame is clearly
traceable in Pierre de Fontaines. To be a gladiator or an actor was, by the
Roman law, a competent cause for disinheritance.607 One of the texts
prescribing it is translated bodily by de Fontaines, the arenarius of the
Roman becoming the champions of the Frenchman;608 and in another
similar transcription from the Digest, the athleta of the original is
transformed into a “champion.”609 By the thirteenth century, the occupation
of champion had thus become infamous. Its professors were classed with
the vilest criminals, and with the unhappy females who exposed their
charms for sale, as the champion did his skill and courage.610 They were
held incapable of appearing as witnesses, and the extraordinary anomaly
was exhibited of seeking to learn the truth in affairs of the highest moment

by a solemn appeal to God, through the instrumentality of those who were
already considered as convicts of the worst kind, or who, by the very act,
were branded with infamy if successful in justifying innocence, and if
defeated were mutilated or hanged.611 By the codes in force throughout
Germany in the thirteenth and fourteenth centuries, they were not only, in
common with bastards, actors, and jugglers, deprived of all legal privileges,
such as succeeding to property, bearing witness, etc., but even their children
were visited with the same disabilities.612 The utter contempt in which they
were held was moreover quaintly symbolized in the same codes by the
provisions of a tariff of damages to be assessed for blows and other
personal injuries. A graduated list of fines is given for such insults offered
to nobles, merchants, peasants, etc., in compensation of their wounded
honor; below the serf come the mountebank and juggler, who could only
cuff the assailant’s shadow projected on the wall; and last of all are rated the
champion and his children, whose only redress was a glance of sunshine
cast upon them by the offender from a duelling shield. Deemed by law
incapable of receiving an insult, the satisfaction awarded was as illusory as
the honor to be repaired.613 That this poetical justice was long in vogue is
proved by the commentary upon it in the Richstich Landrecht, of which the
date is shown to be not earlier than the close of the fourteenth century, by
an allusion in the same chapter to accidental deaths arising from the use of
firearms.614
The Italians, however, took a more sensible and practical view of the
matter. Accepting as a necessity the existence of champions as a class, they
were disposed rather to elevate than to degrade the profession. The law
required that they should not be criminals or infamous, and the fact that
they fought for hire did not render them so.615 In the Veronese code of
1228, they appear as an established institution, consisting of individuals
selected and appointed by the magistrates, who did not allow them to
receive more than one hundred sous for the performance of their office.616
It is evident that the evils attendant upon the employment of champions
were generally recognized, and it is not singular that efforts were
occasionally made to abrogate or limit the practice. Otho II., whose laws
did so much to give respectability to the duel, decreed that champions
should be permitted only to counts, ecclesiastics, women, boys, old men,

and cripples.617 That this rule was strictly enforced in some places we may
infer from the pleadings of a case occurring in 1010 before the Bishop of
Arezzo, concerning a disputed property, wherein a crippled right hand is
alleged as the reason for allowing a champion to one of the parties.618 In
other parts of Italy, however, the regulation must have been speedily
disregarded, for about the same period Henry II. found it necessary to
promulgate a law forbidding the employment of substitutes to able-bodied
defendants in cases of parricide or of aggravated murder;619 and when, two
hundred years later, Frederic II. almost abolished the judicial combat in his
Neapolitan dominions, we may fairly presume from one of his remarks that
champions were universally employed.620 Indeed, he made provision for
supplying them at the public expense to widows, orphans, and paupers who
might be unable to secure for themselves such assistance.621 In Germany,
early in the eleventh century, it would seem that champions were a matter of
course, from the expressions made use of in describing the execution of a
number of robbers convicted in this manner at Merseburg in 1017.622 At a
later period, it seems probable, from a comparison of two chapters of the
Suabian laws, that efforts were made to prevent the hiring of professional
gladiators,623 and in the Saxon burgher laws a man could refuse the duel if
he could prove that his antagonist was a champion serving for pay.624 That
these efforts to restrict the practice, however, were attended with little
success may be inferred from the disabilities which were so copiously
showered on the class by the same laws.
In England, where, as we have seen, the identity of champions and
witnesses was clearly asserted, there were prolonged efforts to suppress
their hiring. In 1150, Henry II. strictly prohibited the wager of battle with
hired champions in his Norman territories;625 although the Norman custom
not only admitted them but required the principal to pay the full sum agreed
upon to his champion whether defeated or not.626 We learn from Glanville
that a champion suspected of serving for money might be objected to by the
opposite party, whence arose a secondary combat to determine his fitness
for the primary one.627 Bracton, moreover, develops this by asserting as a
rule that a witness suspected of being a hired champion was not allowed to
proceed to the combat, but was tried for the attempt by a jury, and if
convicted suffered the penalty of perjury in the loss of a hand or a foot,628

and in another passage he states that hired champions were not
permitted.629 How far these rules were enforced it would now be difficult to
determine. Records show that a frequent defence against an adverse witness
was an offer to prove that he was a hired champion.630 On the other hand,
the payment of champions was frequent and no concealment seems to have
been thought necessary concerning it. Towards the close of the twelfth
century, by a charter Stephen de Nerbana grants two virgata of land to
William son of Ralph “propter duellum quod fecit pro me.”631 In another
charter of Bracton’s date John “quondam porcarius de Coldingham” grants
to the Priory of Coldingham a tract of land which he had received from
Adam de Riston in payment for victoriously fighting a duel for him.632
Even more significant are the formal agreements with champions, such as
that by which in 1276 Bishop Swinefeld declares to all men that he has
appointed Thomas of Brydges his champion, on a salary of 6s. 8d. per
annum, so long as he shall be able to fight, with extra compensation in case
he is called upon to perform his functions.633 Eventually, as we have seen
(p. 183), in civil cases, both parties were compelled by law to employ
champions, which presupposes, as a matter of course, that in a great
majority of instances the substitutes must have been hired.634 In criminal
cases there seems to have been a compromise; in felonies, the defendant
was obliged to appear personally, while in accusations of less moment he
was at liberty to put forward a witness as champion;635 and when the
appellant, from sex or other disability, or the defendant from age, was
unable to undergo the combat personally, it was forbidden, and the case was
decided by a jury.636 By the Scottish law of the thirteenth century, it is
evident that champions were not allowed in any case, since those disabled
by age or wounds were forced to undergo the ordeal in order to escape the
duel.637 This strictness became relaxed in time, though the practice of
employing champions seems never to have received much encouragement.
By a law of Alexander II., about the year 1250, it appears that a noble had
the privilege of putting forward a substitute; but if a peasant challenged a
noble, he was obliged to appear personally, unless his lord undertook the
quarrel for him and presented the champion as from himself.638
The tendency exhibited by the English law in distinguishing between
civil and criminal cases is also manifested elsewhere. Thus, in France and

the Frankish kingdoms of the East, there were limitations placed by law on
the employment of champions in prosecutions for crime,639 while in civil
actions there appear to have been, at least in France, no restrictions
whatever.640 This distinction between civil and criminal practice is very
clearly enunciated by Pierre de Fontaines, who states that in appeal of
judgment the appellant in criminal cases is bound to show satisfactory cause
for employing a champion, while in civil affairs the right to do so requires
no argument.641 In practice, however, it is doubtful whether there was any
effectual bar to their use in any case, for the Monk of St. Denis, in praising
St. Louis for suppressing the battle-trial, gives as one of the benefits of its
abrogation, the removal of the abuse by which a rich man could buy all the
champions of the vicinity, so that a poorer antagonist had no resource to
avoid the loss of life or heritage.642 This hiring of champions, moreover,
was legally recognized as a necessity attendant upon the privilege of
employing them.643 High rank, or a marked difference between the station
of parties to an action, was also admitted as justifying the superior in
putting forward a champion in his place.644 Local variations, however, are
observable in the customs regulating these matters. Thus the municipal laws
of Reims, in the fourteenth century, not only restrict the admission of
champions in criminal matters to cases in which age or physical disability
may incapacitate the principals from personally taking part in the combat,
but also require the accused to swear that the impediment has supervened
since the date of the alleged offence; and even this was of no avail if the
prosecutor had included in his appeal of battle an assertion that such
disability had existed at the time specified.645 Witnesses obliged to support
their testimony by the duel were not only subject to the same restrictions,
but in substituting a hired gladiator were obliged to swear that they had
vainly sought among their friends for some one to assume the office
voluntarily.646 The whole tenor of these provisions, indeed, manifests a
decided intention to surround the employment of champions with every
practicable impediment. In Béarn, again, the appellant in cases of treason
had a right to decide whether the defendant should be allowed to put
forward a substitute, and from the expressions in the text it may be inferred
that in the selection of champions there was an endeavor to secure equality
of age, size, and strength.647 This equalization of chances was thoroughly
carried out in Italy, where the law required them to be selected with that

view.648 Thus in the Veronese code of 1228, where, as has been seen, the
champions were a recognized body, regulated and controlled by the state,
no one could engage a champion before a duel had been judicially decreed.
Then the magistrate was bound to choose gladiators of equal prowess, and
the choice between them was given to the defendant; an arrangement which
rendered the mutilation inflicted on the vanquished combatant only
justifiable on the score of suspected treachery.649 A Bolognese regulation of
the thirteenth century was even fairer, and reduced the combat to an affair
of chance in which the judgment of God had the fullest scope, for when the
champions were in the lists a child placed inside of the garments of each a
card bearing the name of his principal, and until the combat was ended no
one knew which of them represented the plaintiff and which the
defendant.650 In Bigorre, the only restriction seems to have been that
champions should be natives and not foreigners, and their payment was
recognized as a matter of course.651 By the Spanish law of the thirteenth
century, the employment of champions was so restricted as to show an
evident desire on the part of the legislator to discourage it as far as possible.
The defendant had the right to send a substitute into the field, but the
appellant could do so only by consent of his adversary. The champion was
required to be of birth equal to his principal, which rendered the hiring of
champions almost impossible, and not superior to him in force and vigor.
Women and minors appeared by their next of kin, and ecclesiastics by their
advocates.652 In Russia, until the sixteenth century, champions were never
employed, contestants being always obliged to appear in person. In 1550,
the code known as the Sudebtnick at length permitted the employment of
champions in certain cases.653

There were two classes of pleaders, however, with whom the hiring of
champions was a necessity, and who could not be bound by the limitations
imposed on ordinary litigants. While the sexagenary, the infant, and the
crippled might possibly find a representative among their kindred, and
while the woman might appear by her husband or next of kin, the
ecclesiastical foundations and chartered towns had no such resource. Thus,
in a suit for taxes, in 1164, before the court of Verona, Bonuszeno of Soavo

proved that the village of Soavo had exempted his father Petrobatalla from
all local imposts for having served as champion in a duel between it and a
neighboring community, and his claim to the reversion of the exemption
was allowed.654 So a charter of 1104 relates how the monks of Noailles
were harassed by the seizure of some mills belonging to their abbey,
claimed by an official of William Duke of Aquitaine, until at length the
duke agreed to allow the matter to be decided by the duel, when the
champion of the church was victorious and the disputed property was
confirmed to the abbey.655 At length the frequent necessity for this species
of service led to the employment of regularly appointed champions, who
fought the battles of their principals for an annual stipend, or for some other
advantages bestowed in payment. Du Cange, for instance, gives the text of
an agreement by which one Geoffry Blondel, in 1256, bound himself to the
town of Beauvais as its champion for a yearly salary of twenty sous Parisis,
with extra gratifications of ten livres Tournois every time that he appeared
in arms to defend its cause, fifty livres if blows were exchanged, and a
hundred livres if the combat were carried to a triumphant issue. It is a little
singular that Beaumanoir, in digesting the customs of Beauvais but a few
years later, speaks of this practice as an ancient and obsolete one, of which
he had only heard through tradition.656 That it continued to be in vogue
until long after, is shown by Monteil, who alludes to several documents of
the kind, bearing date as late as the fifteenth century.657
As a rule, ecclesiastical communities were likewise under the necessity
of employing champions to defend their rights. Sometimes, as we have
seen, these were hired, and were of no better character than those of
common pleaders. They seem to have been well paid if we may judge from
an agreement of 1258 between the Abbey of Glastonbury and Henry de
Fernbureg, by which the latter bound himself to defend by battle the rights
of the abbey to certain manors against the Bishop of Bath and Wells, for
which he is to receive thirty sterling marks, of which ten are to be paid
when battle is gaged, five when he is shaved for the combat, and on the day
of the duel fifteen are to be placed in the hands of a third party to be paid
over to him if he strikes a single blow.658 Sometimes, however, gentlemen
did not disdain to serve God by fighting for the Church in special cases, as
when, so late as the middle of the fourteenth century, the priory of
Tynemouth had a suit with a troublesome neighbor, Gerard de Widdrington,

over the manor of Hawkshaw, and Sir Thomas Colville, who had won great
renown in the French wars, appeared in court as its champion and offered
the combat. No one could be found hardy enough to accept his challenge
and the manor was adjudged to the priory.659 There was, moreover, another
class of champions of the Church who occupied a distinguished position,
and were bound to defend the interests of their clients in the field as well as
in the court and in the lists; they also led the armed retainers of the church
when summoned by the suzerain to national war. The office was honorable
and lucrative, and was eagerly sought by gentlemen of station, who turned
to account the opportunities of aggrandizement which it afforded; and many
a noble family traced its prosperity to the increase of ancestral property thus
obtained, directly or indirectly, by espousing the cause of fat abbeys and
wealthy bishoprics, as when, in the ninth century, the Abbot of Figeac, near
Cahors, bestowed on a neighboring lord sixty churches and five hundred
mansi on condition of his fighting the battles of the abbey.660 The influence
of feudalism early made itself felt, and the office of Vidame or Avoué
became generally hereditary, after which its possessors, for the most part,
rendered themselves independent of their benefactors, their exactions and
spoliations becoming a favorite theme of objurgation among churchmen,
who regarded them as the worst enemies of the foundations which they had
sworn to protect.661 In many instances the position was a consideration
obtained for donations bestowed upon churches, so that in some countries,
and particularly in England, the title of advocatus became gradually
recognized as synonymous with patron. Thus, one of the worst abuses of the
Anglican Church is derived from this source, and the forgotten wrongs of
the Middle Ages are perpetuated, etymologically at least, in the advowson
which renders the cure of souls too often a matter of bargain and sale.

CHAPTER VIII.
DECLINE OF THE JUDICIAL COMBAT.

So many influences were at work in favor of the judicial duel, and it was
so thoroughly engrafted in the convictions and prejudices of Europe, that
centuries were requisite for its extirpation. Curiously enough, the earliest
decisive action against it took place in Iceland, where it was formally
interdicted as a judicial proceeding in 1011;662 and though the assumption
that this was owing to the introduction of Christianity has been disproved,
still, the fact that both events were contemporaneous allows us to conclude
that some influence may have been exercised by even so imperfect a
religion as that taught to the new converts, though the immediate cause was
a holm-gang between two skalds of distinction, Gunnlaug Ormstunga and
Skald-Rafn.663 Norway was not long in following the example, for about
the same period the Jarls Erik and Sven Hakonsen abolished the holm-gang,
while paganism was as yet widely prevalent.664 Denmark was almost
equally prompt: indeed Saxo Grammaticus in one passage attributes to it the
priority, asserting that when Poppo, in 965, converted Harold Blaatand by
the ordeal of red-hot iron, it produced so powerful an effect as to induce the
substitution of that mode of trial for the previously existing wager of
battle.665 Yet it evidently was not abolished for a century later, for when
Harold the Simple, son of Sven Estrith, ascended the throne in 1074, among
the legal innovations which he introduced was the substitution of the
purgatorial oath for all other forms of defence, which, as Saxo specifically
states, put an end to the wager of battle, and opened the door to great
abuses.666
Fiercer tribes than these in Europe there were none, and their abrogation
of the battle trial at this early age is an inexplicable anomaly. It was an
exceptional movement, however, without results beyond their own narrow
boundaries. Other causes had to work slowly and painfully for ages before
man could throw off the bonds of ancestral prejudice. One of the most
powerful of these causes was the gradual rise of the Tiers-État to
consideration and importance. The sturdy bourgeois, though ready enough
with morion and pike to defend their privileges, were usually addicted to a
more peaceful mode of settling private quarrels. Devoted to the arts of

peace, seeing their interest in the pursuits of industry and commerce,
enjoying the advantage of settled and permanent tribunals, and exposed to
all the humanizing and civilizing influences of close association in
communities, they speedily acquired ideas of progress very different from
those of the savage feudal nobles living isolated in their fastnesses, or of the
wretched serfs who crouched for protection around the castles of their
masters. Accordingly, the desire to escape from the necessity of purgation
by battle is almost coeval with the founding of the first communes. The
earliest instance of this tendency that I have met with is contained in the
charter granted to Pisa by the Emperor Henry IV. in 1081, by which he
agrees that any accusations which he may bring against citizens can be tried
without battle by the oaths of twelve compurgators, except when the
penalties of death or mutilation are involved; and in questions concerning
land, the duel is forbidden when competent testimony can be procured.667
Limited as these concessions may seem, they were an immense innovation
on the prejudices of the age, and are important as affording the earliest
indication of the direction which the new civilization was assuming. More
comprehensive was the privilege granted soon afterwards by Henry I. to the
citizens of London, by which he released them wholly from the duel, and
this was followed by similar exemptions during the twelfth century
bestowed on one town after another; but it was not till near the end of the
century that in Scotland William the Lion granted the first charter of this
kind to Inverness.668 About the year 1105, the citizens of Amiens received a
charter from their bishop, St. Godfrey, in which the duel is subjected to
some restriction—not enough in itself, perhaps, to effect much reform, yet
clearly showing the tendency which existed. According to the terms of this
charter no duel could be decreed concerning any agreement entered into
before two or three magistrates if they could bear witness to its terms.669
One of the earliest instances of absolute freedom from the judicial combat
occurs in a charter granted to the town of Ypres, in 1116 by Baldwin VII. of
Flanders, when he substituted the oath with four conjurators in all cases
where the duel or the ordeal was previously in use.670 This was followed by
a similar grant to the inhabitants of Bari by Roger, King of Naples, in
1132.671 Curiously enough, almost contemporary with this is a similar
exemption bestowed on the rude mountaineers of the Pyrenees. Centulla I.
of Bigorre, who died in 1138, in the Privileges of Lourdes, authorizes the

inhabitants to prosecute their claims without the duel;672 and his desire to
discourage the custom is further shown by a clause permitting the pleader
who has gaged his battle to withdraw on payment of a fine of only five sous
to the seigneur, in addition to what the authorities of the town may levy.673
Still more decided was a provision of the laws of Soest in Westphalia,
somewhat earlier than this, by which the citizens were absolutely prohibited
from appealing each other in battle;674 and this is also to be found in a
charter granted to the town of Tournay by Philip Augustus in 1187, though
in the latter the cold water ordeal is prescribed for cases of murder and of
wounding by night.675 In the laws of Ghent, granted by Philip of Alsace in
1178, there is no allusion to any species of ordeal, and all proceedings seem
to be based on the ordinary processes of law, while in the charter of
Nieuport, bestowed by the same prince in 1163, although the ordeal of red-
hot iron and compurgatorial oaths are freely alluded to as means of
rebutting accusations, there is no reference whatever to the battle trial,
showing that it must then have been no longer in use.676 The charters
granted to Medina de Pomar in 1219 by Fernando III. of Castile, and to
Treviño by Alfonso X. in 1254, provide that there shall be no trial by single
combat.677 Louis VIII. in the charter of Crespy, granted in 1223, promised
that neither himself nor his officials should in future have the right to
demand the wager of battle from its inhabitants;678 and shortly after, the
laws of Arques, conceded by the abbey of St. Bertin in 1231, provided that
the duel could only be decreed between two citizens of that commune when
both parties should assent to it.679 In the same spirit the laws of Riom,
granted by Alphonse de Poitiers, the son of St. Louis, in 1270, declared that
no inhabitant of the town should be forced to submit to the wager of
battle.680 In the customs of Maubourguet, granted in 1309, by Bernard VI.
of Armagnac, privileges similar to those of Lourdes, alluded to above, were
included, rendering the duel a purely voluntary matter.681 Even in Scotland,
partial exemptions of the same kind in favor of towns are found as early as
the twelfth century. A stranger could not force a burgher to fight, except on
an accusation of treachery or theft, while, if a burgher desired to compel a
stranger to the duel, he was obliged to go beyond the confines of the town.
A special privilege was granted to the royal burghs, for their citizens could
not be challenged by the burghers of nobles or prelates, while they had the
right to offer battle to the latter.682 Much more efficient was the clause of

the third Keure of Bruges, granted in 1304 by Philip son of Count Guy of
Flanders, which strictly prohibited the duel. Any one who gave or received
a wager of battle was fined sixty sols, one-half for the benefit of the town,
and the other for the count.683
The special influence exercised by the practical spirit of trade in
rendering the duel obsolete is well illustrated by the privilege granted, in
1127, by William Clito, to the merchants of St. Omer, declaring that they
should be free from all appeals to single combat in all the markets of
Flanders.684 In a similar spirit, when Frederic Barbarossa, in 1173, was
desirous of attracting to the markets of Aix-la-Chapelle and Duisbourg the
traders of Flanders, in the code which he established for the protection of
such as might come, he specially enacted that they should enjoy immunity
from the duel.685 Even Russia found it advantageous to extend the same
exemption to foreign merchants, and in the treaty which Mstislas
Davidovich made in 1228 with the Hanse-town of Riga, he granted to the
Germans who might seek his dominions immunity from liability to the red-
hot iron ordeal and wager of battle.686
Germany seems to have been somewhat later than France or Italy in the
movement, yet her burghers evidently regarded it with favor. Frederic II.,
who recorded his disapproval of the duel in his Sicilian Constitutions, was
ready to encourage them in this tendency, and in his charters to Ratisbon
and Vienna he authorized their citizens to decline the duel and clear
themselves by compurgation,687 while as early as 1219 he exempted the
Nürnbergers from the appeal of battle throughout the empire.688 The
burgher law of Northern Germany alludes to the judicial combat only in
criminal charges, such as violence, homicide, housebreaking, and theft;689
and this is limited in the statutes of Eisenach, of 1283, which provide that
no duel shall be adjudged in the town, except in cases of homicide, and then
only when the hand of the murdered man shall be produced in court at the
trial.690 In 1291, Rodolph of Hapsburg issued a constitution declaring that
the burghers of the free imperial cities should not be liable to the duel
outside of the limits of their individual towns,691 and in the Kayser-Recht
this privilege is extended by declaring the burghers exempt from all
challenge to combat, except in a suit brought by a fellow-citizen.692
Notwithstanding this, special immunities continued to be granted, showing

that these general laws were of little effect unless supported by the temper
of the people. Thus Louis IV. in 1332 gave such a privilege to Dortmund,
and so late as 1355 Charles IV. bestowed it on the citizens of Worms.693
A somewhat noteworthy exception to this tendency on the part of the
municipalities is to be found in Moravia. There, under the laws of Ottokar
Premizlas, in 1229 the duel was forbidden between natives and only
allowed when one of the parties was a foreigner. Yet his son Wenceslas,
some years later, confirmed the customs of the town of Iglau, in which the
duel was a recognized feature enforced by an ascending scale of fines. If the
accused compounded with the prosecutor before the duel was ordered he
paid the judge one mark; after it was adjudged, two marks; after the lists
were entered, three marks; after weapons were taken, four marks; and if he
waited till the weapons were drawn he had to pay five marks.694

All these were local regulations which had no direct bearing on general
legislation, except in so far as they might assist in softening the manners of
their generation and aiding in the general spread of civilization. A more
efficient cause was to be found in the opposition of the Church. From
Liutprand the Lombard to Frederic II., a period of five centuries, no secular
lawgiver, south of Denmark, seems to have thought of abolishing the
judicial combat as a measure of general policy, and those whose influence
was largest were the most conspicuous in fostering it. During the whole of
this period the Church was consistently engaged in discrediting it,
notwithstanding that the local interests or pride of individual prelates might
lead them to defend the vested privileges connected with it in their
jurisdictions.
When King Gundobald gave form and shape to the battle ordeal in
digesting the Burgundian laws, Avitus, Bishop of Vienne, remonstrated
loudly against the practice as unjust and unchristian. A new controversy
arose on the occasion of the duel between the Counts Bera and Sanila, to
which allusion has already been made as one of the important events in the
reign of Louis le Débonnaire. St. Agobard, Archbishop of Lyons, took
advantage of the opportunity to address to the Emperor a treatise in which

he strongly deprecated the settlement of judicial questions by the sword;
and he subsequently wrote another tract against ordeals in general,
consisting principally of scriptural texts with a running commentary,
proving the incompatibility of Christian doctrines with these unchristian
practices.695 Some thirty-five years later the Council of Valence, in 855,
denounced the wager of battle in the most decided terms, praying the
Emperor Lothair to abolish it throughout his dominions, and adopting a
canon which not only excommunicated the victor in such contests, but
refused the rights of Christian sepulture to the victim.696 By this time the
forces of the church were becoming consolidated in the papacy, and the
Vicegerent of God was beginning to make his voice heard authoritatively
throughout Europe. The popes accordingly were not long in protesting
energetically against the custom. Nicholas I. denounced it vigorously as a
tempting of God, unauthorized by divine law,697 and his successors
consistently endeavored, as we have already seen, to discredit it. In the
latter half of the twelfth century, Peter Cantor argues that a champion
undertaking the combat relies either on his superior strength and skill,
which is manifest injustice; or on the justice of his cause, which is
presumption; or on a special miracle, which is a devilish tempting of
God.698 Alexander III. decided that a cleric engaging in a duel, whether
willingly or unwillingly, whether victor or vanquished, was subject to
deposition, but that his bishop could grant him a dispensation provided
there had been loss of neither life nor limb.699 Towards the close of the
century Celestine III. went further, and in the case of a priest who had put
forward a champion who had slain his antagonist he decided that both
principal and champion were guilty of homicide and the priest could no
longer perform his functions, though he might have a dispensation to hold
his benefice.700 These cases suggest one of the reasons why the repeated
papal prohibitions were so ineffective. The all-pervading venality of the
Church of the period found in the dispensing power an exhaustless source
of profit, and dispensations for “irregularities” of all kinds were so
habitually issued that the threatened punishments lost their terrors, and as
Rome gradually absorbed the episcopal jurisdiction, offenders of all kinds
knew that relief from the operation of the canons could always be had there.
Some reason for setting them aside was never hard to find. In 1208 a canon
of Bourges was elected prior; his disappointed competitor claimed that he

was ineligible because he had once served as judge in a duel in which there
was effusion of blood. Innocent III. was appealed to, who decided that the
canon was capable of promotion to any dignity, and the chief reason alleged
was that the evil custom of the duel was so universal in some regions that
ecclesiastics of all classes from the lowest to the highest were habitually
concerned in them.701
Innocent III., however, took care that the great council of Lateran in 1215
should confirm all the previous prohibitions of the practice.702 It was
probably this papal influence that led Simon de Montfort, the special
champion of the church, to limit the use of the duel in the territories which
he won in his crusade against the Count of Toulouse. In a charter given
December 1, 1212, he forbids its use in all the seignorial courts in his
dominions, except in cases of treason, theft, robbery, and murder.703 De
Montfort’s dependence on Rome, however, was exceptional, and
Christendom at large was not as yet prepared to appreciate the reformatory
efforts of the popes. The most that the Council of Paris, held in 1212 for the
reformation of the church by the cardinal-legate Robert de Curzon, could do
was to order the bishops not to permit the duel in cemeteries or other sacred
places.704
The opposition of the church as represented by its worthiest and most
authoritative spokesmen continued. St. Ramon de Peñafort, the leading
canonist of his time, about 1240, asserts uncompromisingly that all
concerned in judicial combats are guilty of mortal sin; the sin is somewhat
lightened indeed when the pleader is obliged to accept the combat by order
of the judge, but the judge himself, the assessors who counsel it, and the
priest who gives the benediction all sin most gravely; if death occurs they
are all homicides and are rendered “irregular.”705 About the same time
Alexander Hales ingeniously argued away the precedent of David and
Goliath by showing that it was simply a prefiguration of the Passion, in
which Christ triumphed over Satan as in a duel.706 With the development,
moreover, of the subtilties of scholastic theology the doctors found that the
duel was less objectionable than the other forms of ordeal, because, as
Thomas Aquinas remarks, the hot iron or boiling water is a direct tempting
of God, while the duel is only a matter of chance, for no one expects
miraculous interposition unless the champions are very unequal in age or

strength.707 This struck at the very root of the faith on which confidence in
the battle ordeal was based, yet in spite of it the persistence of ecclesiastical
belief in the divine interposition is fairly illustrated by a case, related with
great triumph by monkish chroniclers, as late as the fourteenth century,
when a duel was undertaken by direction of the Virgin Mary herself. In
1325, according to the story, a French Jew feigned conversion to
Christianity in order to gratify his spleen by mutilating the images in the
churches, and at length he committed the sacrilege of carrying off the holy
wafer to aid in the hideous rites of his fellows. The patience of the Virgin
being at last exhausted, she appeared in a vision to a certain smith,
commanding him to summon the impious Israelite to the field. A second
and a third time was the vision repeated without effect, till at last the smith,
on entering a church, was confronted by the Virgin in person, scolded for
his remissness, promised an easy victory, and forbidden to pass the church
door until his duty should be accomplished. He obeyed and sought the
authorities. The duel was decreed, and the unhappy Hebrew, on being
brought into the lists, yielded without a blow, falling on his knees,
confessing his unpardonable sins, and crying that he could not resist the
thousands of armed men who appeared around his adversary with
threatening weapons. He was accordingly promptly burned, to the great
satisfaction of all believers.708
Evidently the clergy at large did not second the reformatory efforts of
their pontiffs. There was not only the ancestral belief implanted in the
minds of those from among whom they were drawn, but the seignorial
rights enjoyed by prelates and abbeys were not to be willingly abandoned.
The progress of enlightenment was slow and the teachings of the papacy
can only be enumerated as one of the factors at work to discredit the
judicial duel.709 We can estimate how deeply rooted were the prejudices to
be overcome when we find Dante seriously arguing that property acquired
by the duel is justly acquired; that God may be relied upon to render the just
cause triumphant; that it is wicked to doubt it, while it is folly to believe
that a champion can be the weaker when God strengthens him.710
In its endeavors to suppress the judicial duel the Church had to weigh
opposing difficulties. It could, as we have seen (p. 156), enjoin its members
from taking part in such combats and from adjudging them in their

jurisdictions; it could decree that priests became “irregular” if death ensued
in duels where they gave the benediction, or perhaps even where they had
only brought relics on which the combatants took the oaths. But over the
secular courts it had only the power of persuasion, or at most of moral
coercion, and among the canon doctors there was considerable discussion as
to the extent to which it could pronounce participation in the duel a mortal
sin, entailing excommunication and denial of the rites of sepulture. When a
man sought the duel, when he demanded it of the judge and provoked his
adversary to it, he could be pronounced guilty of homicide if death ensued.
It was otherwise where an innocent man was accused of a mortal crime and
would be hanged if he refused the duel adjudged to him by court. It was
argued that the Church was a harsh mother if she forced her children thus to
submit to death and infamy for a scruple of recent origin, raised merely by
papal command, though the more rigid casuists insisted even on this. All
agreed, however, that in civil cases a man ought rather to undergo the loss
of his property than to imperil his soul and disobey the Church.711

Perhaps the most powerful cause at work was the revival of the Roman
jurisprudence, which in the thirteenth century commenced to undermine all
the institutions of feudalism. Its theory of royal supremacy was most
agreeable to sovereigns whose authority over powerful vassals was scarcely
more than nominal; its perfection of equity between man and man could not
fail to render it enticing to clear-minded jurists, wearied with the
complicated and fantastic privileges of ecclesiastical, feudal, and customary
law. Thus recommended, its progress was rapid. Monarchs lost no
opportunity of inculcating respect for that which served their purpose so
well, and the civil lawyers, who were their most useful instruments,
speedily rose to be a power in the state. Of course the struggle was long, for
feudalism had arisen from the necessities of the age, and a system on which
were based all the existing institutions of Europe could only be attacked in
detail, and could only be destroyed when the advance of civilization and the
general diffusion of enlightenment had finally rendered it obsolete. The
French Revolution was the final battle-field, and that terrible upheaval was

requisite to obliterate a form of society whose existence had numbered nine
hundred years.
The wager of battle was not long in experiencing the first assaults of the
new power. The earliest efficient steps towards its abolition were taken in
1231 by the Emperor Frederic II. in his Neapolitan code. He pronounces it
to be in no sense a legal proof, but only a species of divination,
incompatible with every notion of equity and justice; and he prohibits it for
the future, except in cases of poisoning or secret murder and treason where
other proof is unattainable; and even in these it is placed at the option of the
accuser alone; moreover, if the accuser commences by offering proof and
fails he cannot then have recourse to combat; the accused must be
acquitted.712 The German Imperial code, known as the Kayser-Recht, which
was probably compiled about the same time, contains a similar
denunciation of the uncertainty of the duel, but does not venture on a
prohibition, merely renouncing all responsibility for it, while recognizing it
as a settled custom.713 In the portion, however, devoted to municipal law,
which is probably somewhat later in date, the prohibition is much more
stringently expressed, manifesting the influences at work;714 but even this is
contradicted by a passage almost immediately preceding it. How little
influence these wise counsels had, in a state so intensely feudal and
aristocratic, is exemplified in the Suabian and Saxon codes, where the duel
plays so important a part. Yet the desire to escape it was not altogether
confined to the honest burghers of the cities, for in 1277 Rodolph of
Hapsburg, even before he granted immunity to the imperial towns, gave a
charter to the duchy of Styria, securing to the Styrians their privileges and
rights, and in this he forbade the duel in all cases where sufficient testimony
could be otherwise obtained; while the general tenor of the document shows
that this was regarded as a favor.715 The Emperor Albert I. was no less
desirous of restricting the duel, and in ordinary criminal cases endeavored
to substitute compurgation.716
Still, as late as 1487, the Inquisitor Sprenger, in discountenancing the
red-hot iron ordeal in witch-trials, feels himself obliged to meet the
arguments of those who urged the lawfulness of the duel as a reason for
permitting the cognate appeal to the ordeal. To this he naïvely replies, as
Thomas Aquinas had done, that they are essentially different, as the

champions in a duel are about equally matched, and the killing of one of
them is a simple affair, while the iron ordeal, or that of drinking boiling
water, is a tempting of God by requiring a miracle.717 This shows at the
same time how thoroughly the judicial combat had degenerated from its
original theory, and that the appeal to the God of battles had become a mere
question of chance, or of the comparative strength and skill of a couple of
professional bravos.
In Spain the influence of Roman institutions, transmitted through the
Wisigothic laws, had allowed to the judicial duel less foothold than in other
mediæval lands, and the process of suppressing it began early. In Aragon
the chivalrous Jayme I., el Conquistador, in the franchises granted to
Majorca, on its conquest in 1230, prohibited the judicial combat in both
civil and criminal cases.718 Within forty years from this, Alfonso the Wise
of Castile issued the code generally known as Las Siete Partidas. In this he
evidently desired to curb the practice as far as possible, stigmatizing it as a
custom peculiar to the military class (por lid de caballeros ò de peones),
and as reprehensible both as a tempting of God and as a source of perpetual
injustice.719 Accordingly, he subjected it to very important limitations. The
wager of battle could only be granted by the king himself; it could only take
place between gentlemen, and in personal actions alone which savored of
treachery, such as murder, blows, or other dishonor, inflicted without
warning or by surprise. Offences committed against property, burning,
forcible seizure, and other wrongs, even without defiance, were specifically
declared not subject to its decision, the body of the plaintiff being its only
recognized justification.720 Even in this limited sphere, the consent of both
parties was requisite, for the appellant could prosecute in the ordinary legal
manner, and the defendant, if challenged to battle, could elect to have the
case tried by witnesses or inquest, nor could the king himself refuse him the
right to do so.721 When to this is added that a preliminary trial was requisite
to decide whether the alleged offence was treacherous in its character or
not, it will be seen that the combat was hedged around with such difficulties
as rendered its presence on the statute book scarcely more than an
unmeaning concession to popular prejudice; and if anything were wanting
to prove the utter contempt of the legislator for the decisions of the battle-
trial, it is to be found in the regulation that if the accused was killed on the
field, without confessing the imputed crime, he was to be pronounced

innocent, as one who had fallen in vindicating the truth.722 The same desire
to restrict the duel within the narrowest possible limits is shown in the rules
concerning the employment of champions, which have been already alluded
to. Although the Partidas as a scheme of legislation was not confirmed until
the cortes of 1348 these provisions were lasting and produced the effect
designed. It is true that in 1342 we hear of a combat ordered by Alfonso XI.
between Pay Rodriguez de Ambia and Ruy Paez de Biedma, who mutually
accused each other of treason. It was fought before the king and lasted for
three days without either party obtaining the victory, till, on the evening of
the third day, the king entered the lists and pacified the quarrel, saying that
both antagonists could serve him better by fighting the Moors, with whom
he was at war, than by killing each other.723 Not long afterwards Alfonso in
the Ordenamiento de Alcalá, issued in 1348, repeated the restrictions of the
Partidas, but in a very cursory manner, and rather incidently than directly,
showing that the judicial combat was then a matter of little importance.724
In fact, the jurisprudence of Spain was derived so directly from the Roman
law through the Wisigothic code and its Romance recension, the Fuero
Juzgo, that the wager of battle could never have become so deeply rooted in
the national faith as among the more purely barbarian races. It was therefore
more readily eradicated, and yet, as late as the sixteenth century, a case
occurred in which the judicial duel was prescribed by Charles V., in whose
presence the combat took place.725
The varying phases of the struggle between progress and centralization
on the one side, and chivalry and feudalism on the other, were exceedingly
well marked in France, and as the materials for tracing them are abundant, a
more detailed account of the gradual reform may perhaps have interest, as
illustrating the long and painful strife which has been necessary to evoke
order and civilization out of the incongruous elements from which modern
European society has sprung. The sagacity of St. Louis, so rarely at fault in
the details of civil administration, saw in the duel not only an unchristian
and unrighteous practice, but a symbol of the disorganizing feudalism
which he so energetically labored to suppress. His temper led him rather to
adopt pacific measures, in sapping by the forms of law the foundations of
the feudal power, than to break it down by force of arms as his predecessors
had attempted. The centralization of the Roman polity might well appear to
him and his advisers the ideal of a well-ordered state, and the royal

supremacy had by this time advanced to a point where the gradual
extension of the judicial prerogatives of the crown might prove the surest
mode of humbling eventually the haughty vassals who had so often bearded
the sovereign. No legal procedure was more closely connected with
feudalism, or embodied its spirit more thoroughly, than the wager of battle,
and Louis accordingly did all that lay in his power to abrogate the custom.
The royal authority was strictly circumscribed, however, and though, in his
celebrated Ordonnance of 1260, he formally prohibited the battle trial in the
territory subject to his jurisdiction,726 he was obliged to admit that he had
no power to control the courts of his barons beyond the domains of the
crown.727 Even within this comparatively limited sphere, we may fairly
assume from some passages in the Établissements, compiled about the year
1270, that he was unable to do away entirely with the practice. It is to be
found permitted in some cases both civil and criminal, of peculiarly knotty
character, admitting of no other apparent solution.728 It seems, indeed,
remarkable that he should even have authorized personal combat between
brothers, in criminal accusations, only restricting them in civil suits to
fighting by champions,729 when the German law of nearly the same period
forbids the duel, like marriage, between relations in the fifth degree, and
states that previously it had been prohibited to those connected in the
seventh degree.730
Even this qualified reform provoked determined opposition. Every
motive of pride and interest prompted resistance. The prejudices of birth,
the strength of the feudal principle, the force of chivalric superstition, the
pride of self-reliance gave keener edge to the apprehension of losing an
assured source of revenue. The right of granting the wager of battle was one
of those appertaining to the hauts-justiciers, and so highly was it esteemed
that paintings of champions fighting frequently adorned their halls as
emblems of their prerogatives; Loysel, indeed, deduces from it a maxim,
“The pillory, the gibbet, the iron collar, and paintings of champions
engaged, are marks of high jurisdiction.”731 This right had a considerable
money value, for the seigneur at whose court an appeal of battle was tried
received from the defeated party a fine of sixty livres if he was a gentleman,
and sixty sous if a roturier, besides a perquisite of the horses and arms
employed, and heavy mulcts for any delays which might be asked,732

besides fines from those who withdrew after the combat was decreed.733
Nor was this all, for during the centuries of its existence there had grown
and clustered around the custom an immeasurable mass of rights and
privileges which struggled lustily against destruction. Thus, hardly had the
ordonnance of prohibition been issued when, in 1260, a knight named
Mathieu le Voyer actually brought suit against the king for the loss it
inflicted upon him. He dolefully set forth that he enjoyed the privilege of
guarding the lists in all duels adjudged in the royal court at Corbon, for
which he was entitled to receive a fee of five sous in each case; and, as his
occupation thus was gone, he claimed compensation, modestly suggesting
that he be allowed the same tax on all inquests held under the new law.734
How closely all such sources of revenue were watched is illustrated by a
case occurring in 1286, when Philippe le Bel remitted the fines accruing to
him from a duel between two squires adjudged in the royal court of Tours.
The seneschal of Anjou and Touraine brought suit before the Parlement of
Paris to recover one-third of the amount, as he was entitled to that
proportion of all dues arising from combats held within his jurisdiction, and
he argued that the liberality of the king was not to be exercised to his
disadvantage. His claim was pronounced just, and a verdict was rendered in
his favor.735
But the loss of money was less important than the curtailment of
privilege and the threatened absorption of power of which this reform was
the precursor. Every step in advancing the influence of peaceful justice, as
expounded by the jurists of the royal courts, was a heavy blow to the
independence of the feudatories. They felt their ancestral rights assailed at
the weakest point, and they instinctively recognized that, as the jurisdiction
of the royal bailiffs became extended, and as appeals to the court of the
Parlement of Paris became more frequent, their importance was diminished,
and their means of exercising a petty tyranny over those around them were
abridged. Entangled in the mazes of a code in which the unwonted maxims
of Roman law were daily quoted with increasing veneration, the impetuous
seigneur found himself the prey of those whom he despised, and he saw that
subtle lawyers were busily undoing the work at which his ancestors had
labored for centuries. These feelings are well portrayed in a song of the
period, exhumed not long since by Le Roux de Lincy. Written apparently by
one of the sufferers, it gives so truthful a view of the conservative ideas of

the thirteenth century that a translation of the first stanza may not be amiss:
—
Gent de France, mult estes esbahis!
Je di à touz ceus qui sont nez des fiez, etc.736

Ye men of France, dismayed and sore
Ye well may be. In sooth, I swear,
Gentles, so help me God, no more
Are ye the freemen that ye were!
Where is your freedom? Ye are brought
To trust your rights to inquest law,
Where tricks and quibbles set at naught
The sword your fathers wont to draw.
Land of the Franks!—no more that name
Is thine—a land of slaves art thou,
Of bondsmen, wittols, who to shame
And wrong must bend submissive now!
Even legists—de Fontaines, whose admiration of the Digest led him on
all occasions to seek an incongruous alliance between the customary and
imperial law, and Beaumanoir, who in most things was far in advance of his
age, and who assisted so energetically in the work of centralization—even
these enlightened lawyers hesitate to object to the principles involved in the
battle trial, and while disapproving of the custom, express their views in
language which contrasts strongly with the vigorous denunciations of
Frederic II. half a century earlier.737
How powerful were the influences thus brought to bear against the
innovation is shown by the fact that when the mild but firm hand of St.
Louis no longer grasped the sceptre, his son and successor could not
maintain his father’s laws. In 1280 there is a record of a duel adjudged in
the king’s court between Jeanne de la Valete and the Sire of Montricher on
an accusation of arson;738 and about 1283 Philippe even allowed himself to
preside at a judicial duel, scarcely more than twenty years after the
promulgation of the ordonnance of prohibition.739 The next monarch,
Philippe le Bel, was at first guilty of the same weakness, for when in 1293
the Count of Armagnac accused Raymond Bernard of Foix of treason, a

duel between them was decreed, and they were compelled to fight before
the king at Gisors; though Robert d’Artois interfered after the combat had
commenced, and induced Philippe to separate the antagonists.740 Philippe,
however, was too astute not to see that his interests lay in humbling
feudalism in all its forms; while the rapid extension of the jurisdiction of the
crown, and the limitations on the seignorial courts, so successfully invented
and asserted by the lawyers, acting by means of the Parlement through the
royal bailiffs, gave him power to carry his views into effect such as had
been enjoyed by none of his predecessors. Able and unscrupulous, he took
full advantage of his opportunities in every way, and the wager of battle
was not long in experiencing the effect of his encroachments. Still, he
proceeded step by step, and the vacillation of his legislation shows how
obstinate was the spirit with which he had to deal. In 1296 he prohibited the
judicial duel in time of war, and in 1303 he was obliged to repeat the
prohibition.741 It was probably not long after this that he interdicted the duel
wholly742—possibly impelled thereto by a case occurring in 1303, in which
he is described as forced to grant the combat between two nobles, on an
accusation of murder, very greatly against his wishes, and in spite of all his
efforts to dissuade the appellant.743
In thus abrogating the wager of battle, Philippe le Bel was in advance of
his age. Before three years were over he was forced to abandon the position
he had assumed; and though he gave as a reason for the restoration of the
duel that its absence had proved a fruitful source of encouragement for
crime and villany,744 yet at the same time he took care to place on record
the assertion of his own conviction that it was worthless as a means of
seeking justice.745 In thus legalizing it by the Ordonnance of 1306,
however, he by no means replaced it on its former footing. It was restricted
to criminal cases involving the death penalty, excepting theft, and it was
only permitted when the crime was notorious, the guilt of the accused
probable, and no other evidence attainable.746 The ceremonies prescribed,
moreover, were fearfully expensive, and put it out of the reach of all except
the wealthiest pleaders. As the ordonnance, which is very carefully drawn,
only refers to appeals made by the prosecutor, it may fairly be assumed that
the defendant could merely accept the challenge and had no right to offer it.

Even with these limitations, Philippe was not disposed to sanction the
practice within the domains of the crown, for, the next year (1307), we find
him commanding the seneschal of Toulouse to allow no duel to be adjudged
in his court, but to send all cases in which the combat might arise to the
Parlement of Paris for decision.747 This was equivalent to a formal
prohibition. During the whole of the period under consideration, numerous
causes came before the Parlement concerning challenges to battle, on
appeals from various jurisdictions throughout the country, and it is
interesting to observe how uniformly some valid reason was found for its
refusal. In the public register of decisions, extending from 1254 to 1318,
scarcely a single example of its permission is to be found.748 One doubtful
instance which I have observed is a curious case occurring in 1292, wherein
a man accused a woman of homicide in the court of the Chapter of
Soissons, and the royal officers interfered on the ground that the plaintiff
was a bastard. As by the local custom he thus was in some sort a serf of the
crown, they assumed that he could not risk his body without the express
permission of the king. The Chapter contended for the appellant’s
legitimacy, and the case became so much obscured by the loss of the record
of examination made, that the Parlement finally shuffled it out of court
without any definite decision.749
Two decisions, in 1309, show that the Ordonnance of 1306 was in force,
for while they admit that the duel was legally possible, the cases are settled
by inquest as capable of proof by investigation. One of these was an
incident in the old quarrel between the Counts of Foix and Armagnac, and
its decision shows how great a stride had been made since their duel of
1293. Raymond de Cardone, a kinsman of Foix, gaged his battle in the
king’s court against Armagnac; Armagnac did the same against Foix and
claimed that his challenge had priority over that of Raymond, while
Bernard de Comminges also demanded battle of Foix. All these challenges
arose out of predatory border incursions between these nobles, and in its
verdict the Parlement refuses to grant the combat in any of them, orders all
the parties to swear peace and give bail to keep it, and moreover condemns
Foix in heavy damages to his adversaries and to the king, whose territories
he had invaded in one of his forays. The Count of Foix made some
objection to submitting to the sentence, but a short imprisonment brought
him to his senses.750 A more thorough vindication of the royal jurisdiction

over powerful feudatories could scarcely be imagined, and the work of the
civil lawyers seemed to be perfectly accomplished. It was the same with all
the variety of cases involving the duel which were brought to the
cognizance of the Parlement. Some ingenious excuse was always found for
refusing it, whether by denying the jurisdiction of the court which had
granted it, or by alleging other reasons more or less frivolous, the evident
intention of all the arrêts being to restrict the custom, as allowed under the
ordonnance, within limits so narrow as to render it practically a nullity. The
astute lawyers who composed the royal court knew too well the work
committed to them to hesitate as to their conclusions, while Philippe’s
distaste for the duel probably received a stimulus when, at the Council of
Vienne in 1312 he endeavored to obtain the condemnation of the memory
of Boniface VIII., and two Catalan knights offered to prove by the single
combat that the late pope had been legitimately elected and had not been a
heretic.751
In spite of these efforts, the progress of reform was slow. On the breaking
out afresh of the perennial contest with Flanders, Philippe found himself, in
1314, obliged to repeat his order of 1296, forbidding all judicial combats
during the war, and holding suspended such as were in progress.752 As these
duels could have little real importance in crippling his military resources, it
is evident that he seized such occasions to accomplish under the war power
what his peaceful prerogative was unable to effect, and it is a striking
manifestation of his zeal in the cause, that he could turn aside to give
attention to it amid the preoccupations of the exhausting struggle with the
Flemings. Yet how little impression he made, and how instinctively the
popular mind still turned to the battle ordeal, as the surest resource in all
cases of doubt, is well illustrated by a passage in a rhyming chronicle of the
day. When the close of Philippe’s long and prosperous reign was darkened
by the terrible scandal of his three daughters-in-law, and two of them were
convicted of adultery, Godefroy de Paris makes the third, Jeanne, wife of
Philippe le Long, offer at once to prove her innocence by the combat:—

Gentil roy, je vous requier, sire,
Que vous m’oiez en defendant.
Se nul ou nule demandant
Me vait chose de mauvestie,
Mon cuer sens si pur, si haitie,
Que bonement me deffendrai,
Ou tel champion baillerai,
Qui bien saura mon droit deffendre,
S’il vous plest à mon gage prendre.753

The iron hand of Philippe was no sooner withdrawn than the nobles made
desperate efforts to throw off the yoke which he had so skilfully and
relentlessly imposed on them. His son, Louis Hutin, not yet firmly seated on
the throne, was constrained to yield a portion of the newly-acquired
prerogative. The nobles of Burgundy, for instance, in their formal list of
grievances, demanded the restoration of the wager of battle as a right of the
accused in criminal cases, and Louis was obliged to promise that they
should enjoy it according to ancient custom.754 Those of Amiens and
Vermandois were equally clamorous, and for their benefit he re-enacted the
Ordonnance of 1306, permitting the duel in criminal prosecutions where
other evidence was deficient, with an important extension authorizing its
application to cases of theft, in opposition to previous usage.755 A legal
record, compiled about 1325 to illustrate the customs of Picardy, shows by
a group of cases that it was still quite common, and that indeed it was the
ordinary defence in accusations of homicide.756 The nobles of Champagne
demanded similar privileges, but Louis, by the right of his mother, Jeanne
de Champagne, was Count of Champagne, and his authority was less open
to dispute. He did not venture on a decided refusal, but an evasive answer,
which was tantamount to a denial of the request,757 showed that his
previous concessions were extorted, and not willingly granted. Not content
with this, the Champenois repeated their demand, and received the dry
response, that the existing edicts on the subject must be observed.758

The threatened disturbances were avoided, and during the succeeding
years the centralization of jurisdiction in the royal courts made rapid
progress. It is a striking evidence of the successful working of the plans of
St. Louis and Philippe le Bel that several ordonnances and charters granted
by Philippe le Long in 1318 and 1319, while promising reforms in the
procedures of the bailiffs and seneschals, and in the manner of holding
inquests, are wholly silent on the subject of the duel, affording a fair
inference that complaints on that score were no longer made.759 Philip of
Valois was especially energetic in maintaining the royal jurisdiction, and
when in 1330 he was obliged to restrict the abusive use of appeals from the
local courts to the Parlement,760 it is evident that the question of granting or
withholding the wager of battle had become practically a prerogative of the
crown. That the challenging of witnesses must ere long have fallen into
desuetude is shown by an edict of Charles VI., issued in 1396, by which he
ordered that the testimony of women should be received in evidence in all
the courts throughout his kingdom.761
Though the duel was thus deprived, in France, of its importance as an
ordinary legal procedure, yet it was by no means extinguished, nor had it
lost its hold upon the confidence of the people. An instructive illustration of
this is afforded by the well-known story of the Dog of Montargis. Though
the learned Bullet762 has demonstrated the fabulous nature of this legend,
and has traced its paternity up to the Carlovingian romances, still, the fact is
indubitable that it was long believed to have occurred in 1371, under the
reign of Charles le Sage, and that authors nearly contemporary with that
period recount the combat of the dog and the knight as an unquestionable
fact, admiring greatly the sagacity of the animal, and regarding as a matter
of course both the extraordinary judicial proceedings and the righteous
judgment of God which gave the victory to the greyhound.
In 1371 there was battle gaged between Sir Thomas Felton, Seneschal of
Aquitaine, and Raymond de Caussade, Seigneur de Puycornet. Apparently
they felt that a fair field could not be had in either French or English
territory, and they applied to Pedro el Ceremonioso of Aragon to provide
the lists for them. Pedro acceded to the request and promised to preside,
provided there was due cause for a judicial duel and that the arms were
agreed upon in advance, and he sent the combatants safe-conducts to come

to Aragon. He assigned the city of Valencia as the place of combat, and
when there was an endeavor to break off the affair on the ground that it
concerned the kings of France and England, he replied that it was now too
late and that the battle must take place.763
In 1386, the Parlement of Paris was occupied with a subtle discussion as
to whether the accused was obliged, in cases where battle was gaged, to
give the lie to the appellant, under pain of being considered to confess the
crime charged, and it was decided that the lie was not essential.764 The
same year occurred the celebrated duel between the Chevalier de Carrouges
and Jacques le Gris, to witness which the king shortened a campaign, and in
which the appellant was seconded by Waleran, Count of St. Pol, son-in-law
of the Black Prince. Nothing can well be more impressive than the scene so
picturesquely described by Froissart. The cruelly wronged Dame de
Carrouges, clothed in black, is mounted on a sable scaffold, watching the
varying chances of the unequal combat between her husband, weakened by
disease, and his vigorous antagonist, with the fearful certainty that, if
strength alone prevail, he must die a shameful death and she be consigned
to the stake. Hope grows faint and fainter; a grievous wound seems to place
Carrouges at the mercy of his adversary, until at the last moment, when all
appeared lost, she sees the avenger drive his sword through the body of his
prostrate enemy, vindicating at once his wife’s honor and his own good
cause.765 Froissart, however, was rather an artist than an historian; he would
not risk the effect of his picture by too rigid an adherence to facts, and he
omits to mention, what is told by the cooler Juvenal des Ursins, that Le Gris
was subsequently proved innocent by the death-bed confession of the real
offender.766 To make the tragedy complete, the Anonyme de S. Denis adds
that the miserable Dame de Carrouges, overwhelmed with remorse at
having unwittingly caused the disgrace and death of an innocent man,
ended her days in a convent.767 So striking a proof of the injustice of the
battle ordeal is said by some writers to have caused the abandonment of the
practice; but this, as will be seen, is an error, though no further trace of the
combat as a judicial procedure is to be found on the registers of the
Parlement of Paris.768
Still, it was popularly regarded as an unfailing resource. Thus, in 1390,
two women were accused at the Châtelet of Paris of sorcery. After repeated

torture, a confession implicating both was extracted from one of them, but
the other persisted in her denial, and challenged her companion to the duel
by way of disproving her evidence. In the record of the proceedings the
challenge is duly entered, but no notice whatever seems to have been taken
of it by the court, showing that it was no longer a legal mode of trial in such
cases.769
In 1409, the battle trial was materially limited by an ordonnance of
Charles VI. prohibiting its employment except when specially granted by
the king or the Parlement;770 and though the latter body may never have
exercised the privilege thus conferred upon it, the king occasionally did, as
we find him during the same year presiding at a judicial duel between
Guillaume Bariller, a Breton knight, and John Carrington, an
Englishman.771 The English occupation of France, under Henry V. and the
Regent Bedford, revived the practice, and removed for a time the obstacles
to its employment. Nicholas Upton, writing in the middle of the fifteenth
century, repeatedly alludes to the numerous cases in which he assisted as
officer of the Earl of Salisbury, Lieutenant of the King of England; and in
his chapters devoted to defining the different species of duel he betrays a
singular confusion between the modern ideas of reparation of honor and the
original object of judicial investigation, thus fairly illustrating the
transitional character of the period.772
It was about this time that Philippe le Bon, Duke of Burgundy, formally
abolished the wager of battle, as far as lay in his power, throughout the
extensive dominions of which he was sovereign, and in the Coutumier of
Burgundy, as revised by him in 1459, there is no trace of it to be found. The
code in force in Britanny until 1539 permitted it in cases of contested
estates, and of treason, theft, and perjury—the latter, as usual, extending it
over a considerable range of civil actions, while the careful particularization
of details by the code shows that it was not merely a judicial antiquity.773 In
Normandy, the legal existence of the judicial duel was even more
prolonged, for it was not until the revision of the coutumier in 1583, under
Henry III., that the privilege of deciding in this way numerous cases, both
civil and criminal, was formally abolished.774 Still, it may be assumed that,
practically, the custom had long been obsolete, though the tardy process of
revising the local customs allowed it to remain upon the statute book to so

late a date. The fierce mountaineers of remote Béarn clung to it more
obstinately, and in the last revision of their code, in 1552, which remained
unaltered until 1789, it retains its place as a legitimate means of proof, in
default of other testimony, with a heavy penalty on the party who did not
appear upon the field at the appointed time.775
During this long period, examples are to be found which show that
although the combat was falling into disuse, it was still a legal procedure,
which in certain cases could be claimed as a right, or which could be
decreed and enforced by competent judicial authority. Among the privileges
of the town of Valenciennes was one to the effect that any homicide taking
refuge there could swear that the act had been committed in self-defence,
when he could be appealed only in battle. This gave occasion to a combat in
1455 between a certain Mahuot and Jacotin Plouvier, the former of whom
had killed a kinsman of the latter. Neither party desired the battle, but the
municipal government insisted upon it, and furnished them with instructors
to teach the use of the club and buckler allowed as arms. The Comte de
Charolois, Charles le Téméraire, endeavored to prevent the useless cruelty,
but the city held any interference as an infringement of its chartered rights;
and, after long negotiations, Philippe le Bon, the suzerain, authorized the
combat and was present at it. The combatants, according to custom, had the
head shaved and the nails pared on both hands and feet; they were dressed
from head to foot in a tight-fitting suit of hardened leather, and each was
anointed with grease to prevent his antagonist from clutching him. The
combat was long and desperate, but at length the appellant literally tore out
the heart of his antagonist.776 Such incidents among roturiers, however,
were rare. More frequently some fiery gentleman claimed the right of
vindicating his quarrel at the risk of his life. Thus, in 1482, shortly after the
battle of Nancy had reinstated René, Duke of Lorraine, on the ruins of the
second house of Burgundy, two gentlemen of the victor’s court, quarrelling
over the spoils of the battle-field, demanded the champ-clos; it was duly
granted, and on the appointed day the appellant was missing, to the great
discomfiture and no little loss of his bail.777 When Charles d’Armagnac, in
1484, complained to the States General of the inhuman destruction of his
family, committed by order of Louis XI., the Sieur de Castlenau, whom he
accused of having poisoned his mother, the Comtesse d’Armagnac,
appeared before the assembly, and, his advocate denying the charge,

presented his offer to prove his innocence by single combat.778 In 1518,
Henry II. of Navarre ordered a judicial duel at Pau between two contestants,
of whom the appellant made default; the defendant was accordingly
pronounced innocent, and was empowered to drag through all cities,
villages, and other places through which he might pass, the escutcheon and
effigy of his adversary, who was further punished by the prohibition
thenceforth to wear arms or knightly bearings.779 In 1538, Francis I. granted
the combat between Jean du Plessis and Gautier de Dinteville, which would
appear to have been essentially a judicial proceeding, since the defendant,
not appearing at the appointed time, was condemned to death by sentence of
the high council, Feb. 20, 1538.780 The duel thus was evidently still a matter
of law, which vindicated its majesty by punishing the unlucky contestant
who shrank from the arbitrament of the sword.
Allusion has already been made to the celebrated combat between
Chastaigneraye and Jarnac, in 1547, wherein the death of the former, a
favorite of Henry II., led the monarch to take a solemn oath never to
authorize another judicial duel. Two years later, two young nobles of his
court, Jacques de Fontaine, Sieur de Fendilles, and Claude des Guerres,
Baron de Vienne-le-Chatel, desired to settle in this manner a disgusting
accusation brought against the latter by the former. The king, having
debarred himself from granting the appeal, arranged the matter by allowing
Robert de la Marck, Marshal of France, and sovereign Prince of Sedan, to
permit it in the territory of which he was suzerain. Fendilles was so sure of
success that he refused to enter the lists until a gallows was erected and a
stake lighted, where his adversary after defeat was to be gibbeted and
burned. Their only weapons were broad-swords, and at the first pass
Fendilles inflicted on his opponent a fearful gash in the thigh. Des Guerres,
seeing that loss of blood would soon reduce him to extremity, closed with
his antagonist, and being a skilful wrestler speedily threw him. Reduced to
his natural weapons, he could only inflict blows with the fist, which failing
strength rendered less and less effective, when a scaffold crowded with
ladies and gentlemen gave way, throwing down the spectators in a shrieking
mass. Taking advantage of the confusion, the friends of Des Guerres
violated the law which imposed absolute silence and neutrality on all, and
called to him to blind and suffocate his adversary with sand. Des Guerres
promptly took the hint, and Fendilles succumbed to this unknightly weapon.

Whether he formally yielded or not was disputed. Des Guerres claimed that
he should undergo the punishment of the gallows and stake prepared for
himself, but de la Marck interfered, and the combatants were both suffered
to retire in peace.781 This is the last recorded instance of the wager of battle
in France. The custom appears never to have been formally abolished, and
so little did it represent the thoughts and feelings of the age which
witnessed the Reformation, that when, in 1566, Charles IX. issued an edict
prohibiting duels, no allusion was made to the judicial combat. The
encounters which he sought to prevent were solely those which arose from
points of honor between gentlemen, and the offended party was ordered not
to appeal to the courts, but to lay his case before the Marshals of France, or
the governor of his province.782 The custom had died a natural death. No
ordonnance was necessary to abrogate it; and, seemingly, from
forgetfulness, the crown and the Parlement appear never to have been
divested of the right to adjudge the wager of battle.

In Italy many causes conspired to lead to the abrogation of the judicial
duel. On the one hand there were the prescriptions of the popes, and on the
other the spirit of scepticism fostered by the example of Frederic II. The
influence of the resuscitated Roman law was early felt and its principles
were diffused by the illustrious jurists who rendered the Italian schools
famous. Burgher life, moreover, was precociously developed in the social
and political organization, and as the imperial influence diminished with the
fall of the House of Hohenstaufen, the cities assumed self-government and
fashioned their local legislation after their own ideals. The judgments of
God were not indigenous in Italy; they were not ancestral customs rooted in
the prehistoric past, but were foreign devices introduced by conquerors—
first by the Lombards and then by the Othos. There were thus many reasons
why the trial by combat should disappear early from the Italian statute
books. There is no trace of it in the elaborate criminal code of Milan
compiled in 1338, nor in that of Piacenza somewhat later; in fact, it was no
longer needed, for the inquisitional process was in full operation and in
doubtful cases the judge had all the resources of torture at his disposal.783

Although by the middle of the fourteenth century it had thus disappeared
from the written law, the rulers retained the right to grant it in special cases,
and it thus continued in existence as a lawful though extra-legal mode of
settling disputed cases. Where suzerains were so numerous there was thus
ample opportunity for belligerent pleaders to gratify their desires. Even as
late as 1507 Giovanni Paolo Baglioni, lord of Spello (a village in the Duchy
of Spoleto, near Foligno), granted a licence for a month to Giovanni Batta
Gaddi and Raffaello Altoviti to settle their suits by fighting within his
domain with three comrades.784 Two years after this, Julius II., in issuing a
constitution directed against duels of honor, took occasion also to include in
his prohibition all such purgationes vulgares, even though permitted by the
laws; the combatants were ordered, in all the States of the Church, to be
arrested and punished for homicide or maiming according to the common
law.785 In 1519 Leo X. reissued this bull with vastly sharper penalties on all
concerned, but in his additions to it he seems merely to have in mind the
duel of honor, which was habitually conducted in public, in lists prepared
for the purpose, and in presence of the prince or noble who had granted
licence for it.786 The legal combat may be considered to have virtually
disappeared, but the duel of honor which succeeded it inherited some of its
sanctions, and in the learned treatises on the subject which appeared during
the first half of the sixteenth century there are still faint traces to be found
of the survival of the idea of the judgment of God.787
In Hungary, it was not until 1486 that any attempt was made to restrict
the judicial duel. In that year Matthias Corvinus prohibited it in cases where
direct testimony was procurable: where such evidence was unattainable, he
still permitted it, both in civil and criminal matters.788 In 1492 Vladislas II.
repeated this prohibition, alleging as his reason for the restriction the almost
universal employment of champions who sometimes sold out their
principals. The terms of the decree show that previously its use was general,
though it is declared to be a custom unknown elsewhere.789
In Flanders, it is somewhat remarkable that the duel should have lingered
until late in the sixteenth century, although, as we have seen above, the
commercial spirit of that region had sought its abrogation at a very early
period, and had been seconded by the efforts of Philippe le Bon in the
fifteenth century. Damhouder, writing about the middle of the sixteenth

century, states that it was still legal in matters of public concern, and even
his severe training as a civil lawyer cannot prevent his declaring it to be
laudable in such affairs.790 Indeed, when the Council of Trent, in 1563,
stigmatized the duel as the work of the devil and prohibited all potentates
from granting it under pain of excommunication and forfeiture of all feudal
possessions,791 the state Council of Flanders, in their report to the Duchess
of Parma on the reception of the Council, took exception to this canon, and
decided that the ruler ought not to be deprived of the power of ordering the
combat.792 In this view, the Council of Namur agreed.793
In Germany, in spite of the imperial legislation referred to above (p. 212),
feudal influences were too strong to permit an early abrogation of the
custom. Throughout the fifteenth century the wager of battle continued to
flourish, and MSS. of the period give full directions as to the details of the
various procedures for patricians and plebeians. The sixteenth century saw
its wane, though it kept its place in the statute books, and Fechtbücher of
1543 and 1556 describe fully the use of the club and the knife. Yet when in
1535 Friedrich von Schwartzenberg demanded a judicial duel to settle a suit
with Ludwig von Hutten, the latter contemptuously replied that such things
might be permitted in the times of Goliath and Dietrich of Bern, but that
now they were not in accordance with law, right, or custom, and von
Schwartzenberg was obliged to settle the case in more peaceful fashion.
Still, occasional instances of its use are said to have occurred until the close
of the century,794 and as late as 1607, Henry, Duke of Lorraine, procured
from the Emperor Rodolph II. the confirmation of a privilege which he
claimed as ancestral that all combats occurring between the Rhine and the
Meuse should be fought out in his presence.795
In Russia, under the code known as the Ulogenié Zakonof, promulgated
in 1498, any culprit, after his accuser’s testimony was in, could claim the
duel; and as both parties went to the field accompanied by all the friends
they could muster, the result was not infrequently a bloody skirmish. These
abuses were put an end to by the Sudebtnick, issued in 1550, and the duel
was regulated after a more decent fashion, but it continued to flourish
legally until it was finally abrogated in 1649 by the Czar Alexis
Mikhailovich, in the code known as the Sobornoié Ulogenié. The more
enlightened branch of the Slavonic race, however, the Poles, abolished it in

the fourteenth century; but Macieiowski states that in Servia and Bulgaria
the custom has been preserved to the present day.796
In other countries, the custom likewise lingered to a comparatively late
period. Scotland, indeed, was somewhat more forward than her neighbors;
for in the year 1400, her Parliament showed the influence of advancing
civilization by limiting the practice in several important particulars, which,
if strictly observed, must have rendered it almost obsolete. Four conditions
were pronounced essential prerequisites: the accusation must be for a
capital crime; the offence must have been committed secretly and by
treachery; reasonable cause of suspicion must be shown against the
accused, and direct testimony both of witnesses and documents must be
wanting.797
Still the “perfervidum ingenium Scotorum” clung to the arbitrament of
the sword with great tenacity. In 1532 Sir James Douglass accused his son-
in-law Robert Charteris of treason, and the charge was settled by a judicial
duel in the presence of James V., who put an end to it when Charteris’s
sword broke.798 Knox relates that in 1562, when the Earl of Arran was
consulting with him and others respecting a proposed accusation against
Bothwell for high treason, arising out of a plan for seizing Queen Mary
which Bothwell had suggested, the earl remarked, “I know that he will offer
the combate unto me, but that would not be suffered in France, but I will do
that which I have proposed.” In 1567, also, when Bothwell underwent a
mock trial for the murder of Darnley, he offered to justify himself by the
duel; and when the Lords of the Congregation took up arms against him,
alleging as a reason the murder and his presumed designs against the infant
James VI., Queen Mary’s proclamation against the rebels recites his
challenge as a full disproval of the charges. When the armies were drawn up
at Carberry Hill, Bothwell again came forward and renewed his challenge.
James Murray, who had already offered to accept it, took it up at once, but
Bothwell refused to meet him on account of the inequality in their rank.
Murray’s brother, William of Tullibardin, then offered himself, and
Bothwell again declined, as the Laird of Tullibardin was not a peer of the
realm. Many nobles then eagerly proposed to take his place, and Lord
Lindsay especially insisted on being allowed the privilege of proving the
charge on Bothwell’s body, but the latter delayed on various pretexts, until

Queen Mary was able to prohibit the combat.799 The last judicial duels
fought in Scotland were two which occurred as the sixteenth century was
closing. In 1595, under a warrant from James VI. John Brown met George
Hepburn and was vanquished, though his life was spared at the request of
the judges. In 1597 Adam Bruntfield charged James Carmichael with
causing the death of his brother, and under royal licence fought and slew
him before a crowd of five thousand spectators. Yet even this was not the
end of the legal custom, for in 1603 an accusation of treason against Francis
Mowbray was adjudged to be settled by the duel, though the combat was
prevented by Mowbray meeting his death in an attempt to escape from
prison, after which he was duly hanged and quartered.800
In England, the resolute conservatism, which resists innovation to the
last, prolonged the existence of the wager of battle until a period unknown
in other enlightened nations. No doubt a reason for this may be found in the
rise of the jury trial towards the end of the twelfth century, which, as we
have seen above (p. 144), furnished an effective substitute for the combat in
doubtful cases. As the jury system developed itself in both civil and
criminal matters the sphere of the duel became more limited, in practice if
not in theory, and its evils being thus less felt the necessity for its formal
abrogation was less pressing.801 It was thus enabled to hold its place as a
recognized form of procedure to a later period than in any other civilized
land. Already in the first quarter of the thirteenth century Mr. Maitland tells
us that in criminal cases it had become uncommon, but the number of
examples of it which he gives shows that this can only be in comparison
with its greater frequency in the preceding century and that it was still in
common use notwithstanding the tendency of the judges to disallow it.802
At the close of the fourteenth century, when France was engaged in
rendering it rapidly obsolete, Thomas, Duke of Gloucester, dedicated to his
nephew Richard II. a treatise detailing elaborately the practice followed in
the Marshal’s court with respect to judicial duels.803 Even a century later,
legislation was obtained to prevent its avoidance in certain cases. The
“Statute of Gloucester” (6 Ed. II. cap. 9), in 1333, had given to the appellant
a year and a day in which to bring his appeal of death—a privilege allowed
the widow or next of kin to put the accused on a second trial after an
acquittal on a public indictment—which, as a private suit, was usually
determined by the combat. In practice, this privilege was generally rendered

unavailing by postponing the public prosecution until the expiration of the
delay, so as to prevent the appeal. In 1486, however, a law was passed to
diminish the frequency of murder, which required the trial to be finished
before the expiration of the year and day, and ordered the justices, in case of
acquittal, to hold the defendant in prison or on bail until the time had
passed, so as to insure to the widow or next of kin the opportunity of
prosecuting the appeal of death.804 Another evidence of the prevalence of
the custom is to be found in the rule which, in the fifteenth century,
permitted a priest to shrive a man who was about to wage his battle, without
regard to the fact as to whose parishioner he might legally be—
And of mon that schal go fyghte
In a bateyl for hys ryghte,
Hys schryft also thou myghte here,
Thagh he thy pareschen neuer were.805
With the advance of civilization and refinement, the custom gradually
declined, but it was not abolished. The last duel fought out in England is
said to be one in 1492 between Sir James Parker and Hugh Vaughan, arising
from a grant of armorial bearings to Vaughan; it was fought on horseback
with lances, and at the first course Vaughan slew his antagonist.806 Still the
old laws remained unaltered, and an occasional appeal to them, while it
offended men’s common sense, was insufficient to cause their repeal. In
1571 a case occurred, as Spelman says, “non sine magna jurisconsultorum
perturbatione,” when, to determine the title to an estate in Kent,
Westminster Hall was forced to adjourn to Tothill Fields, and all the
preliminary forms of a combat were literally enacted with the most
punctilious exactness, though an accommodation between the parties saved
the skulls of their champions.807 In 1583, however, a judicial duel was
actually fought in Ireland between two O’Connors on an accusation of
treason brought by one against the other, which ended by the appellant
cutting off the defendant’s head and presenting it on his sword’s point to the
justices.808
A device, peculiar to the English jurisprudence, allowed a man indicted
for a capital offence to turn “approver,” by confessing the crime and
charging or appealing any one he choose as an accomplice, and this appeal
was usually settled by the single combat. Indeed, even when a criminal had

confessed he was sometimes pardoned on condition of his being victorious
in a specified number of duels, and thus compounding for his own life by
the service rendered to society in relieving it of so many malefactors, as in a
case in 1221 where a confessed thief “became approver to fight five
battles.”809 The custom continued to be a feature of criminal jurisprudence
sufficiently important to require legislation as late as the year 1599, when
the Act 41 Eliz. chap. 3 was passed to regulate the nice questions which
attended appeals of several persons against one, or of one person against
several. In the former case, the appellee, if victorious in the first duel, was
acquitted; in the latter, the appellor was obliged to fight successively with
all the appellees.810 In civil suits the last case on record, I believe, is that of
Claxton v. Lilburn, which shows curiously enough the indisposition to put
an end to what was regarded by common consent as a solecism. A valuable
estate in Durham, said to be worth more than £200 a year, was the subject in
dispute. Claxton had been unsuccessful in a suit for its recovery, and had
brought a new action, to which Lilburn responded, Aug. 6th, 1638, by
producing in court his champion, George Cheney, in array, armed with a
sandbag and battoon, who cast into the court his gauntlet with five small
pence in it, and demanded battle. Claxton rejoined by producing a
champion similarly armed, and gaged his battle. The court was nonplussed,
putting off the proceedings from day to day, and seeking some excuse for
refusing the combat. The champions were interrogated, and both admitted
that they were hired for money. King Charles demanded the opinion of the
Chief Justice and all his barons whether this was sufficient to invalidate the
proceedings, but they unanimously replied that after battle was gaged and
sureties given, such confession was no bar to its being carried out. The King
then ordered his judges if possible to find some just way for its prevention,
but they apparently could do nothing save procrastinate the matter for years,
for in 1641 Lilburn petitioned the Long Parliament, setting forth that he had
repeatedly claimed his right of battle and had produced his champion, but
was ever put off by the judges finding some error in the record. Parliament
thereupon ordered a bill to be brought in taking away the judicial
combat.811 It was not enacted however, and Sir Matthew Hale, writing
towards the close of the century, feels obliged to describe with considerable
minuteness the various niceties of the law, though he is able to speak of the
combat as “an unusual trial at this day.”812

In 1774, the subject incidentally attracted attention in a manner not very
creditable to the enlightenment of English legislation. When, to punish the
rebellious Bostonians for destroying the obnoxious tea, a “Bill for the
improved administration of justice in the province of Massachusetts Bay”
was passed, it originally contained a clause depriving the New Englanders
of the appeal of death, by which, it will be remembered, a man acquitted of
a charge of murder could be again prosecuted by the next of kin, and the
question could be determined by the wager of battle. The denial of this
ancestral right aroused the indignation of the liberal party in the House of
Commons, and the point was warmly contested. The learned and eloquent
Dunning, afterwards Lord Ashburton, one of the leaders of opposition,
defended the ancient custom in the strongest terms. “I rise,” said he, “to
support that great pillar of the constitution, the appeal for murder; I fear
there is a wish to establish a precedent for taking it away in England as well
as in the colonies. It is called a remnant of barbarism and gothicism. The
whole of our constitution, for aught I know, is gothic.... I wish, sir, that
gentlemen would be a little more cautious, and consider that the yoke we
are framing for the despised colonists may be tied round our own necks!”
Even Burke was heard to lift a warning voice against the proposed
innovation, and the obnoxious clause had to be struck out before the
ministerial majority could pass the bill.813 Something was said about
reforming the law throughout the empire, but it was not done, and the
beauty of the “great pillar of the constitution,” the appeal of death, was
shown when the nineteenth century was disgraced by the resurrection of all
the barbaric elements of criminal jurisprudence. In 1818, the case of
Ashford vs. Thornton created much excitement. Ashford was the brother of
a murdered girl, whose death, under circumstances of peculiar atrocity, was
charged upon Thornton, with much appearance of probability. Acquitted on
a jury trial, Thornton was appealed by Ashford, when he pleaded “Not
guilty, and I am ready to defend the same by my body.” After elaborate
argument, Lord Ellenborough, with the unanimous assent of his brother
justices, sustained the appellee’s right to this as “the usual and
constitutional mode of trial,” expounding the law in almost the same terms
as those which we read in Bracton and Beaumanoir.814 The curious crowd
was sorely disappointed when the appellant withdrew, and the chief justice
was relieved from the necessity of presiding over a gladiatorial exhibition.
A similar case occurred almost simultaneously in Ireland, and the next year

the Act 59 Geo. III. chap. 46, at length put an end to this remnant of
Teutonic barbarism.815

America, inheriting the blessings of English law, inherited also its
defects. The colonies enjoyed the privilege of the appeal of death, against
the abrogation of which, in the province of Massachusetts Bay, Dunning
protested so vehemently. At least one instance of its employment is to be
found here, when in 1765, in Maryland, Sarah Soaper appealed a negro
slave named Tom for the murder of her husband. The negro, however, was
probably not aware of his privilege to demand the wager of battle, so he
submitted to be tried by a jury, and was duly condemned and executed.816
John C. Gray, Jr., Esq., of Boston, to whom I am indebted for calling my
attention to this and some other sources of information on the subject,
informs me of a tradition that a disputed question of boundary between two
townships in New Hampshire was once settled by combat between
champions; but the most conservative State in this respect appears to be
South Carolina. An act of that colony, in 1712, enumerating the English
laws to be held in force, specifically includes those concerning appeal of
death, and Dr. Cooper, in his “Statutes at Large of South Carolina,” writing
in 1837, seems to think that both the wager of battle and appeal of death
were still legally in force there at that time.817 So Chancellor Kilty, in his
Report on English Statutes applicable to Maryland, made in 1811,
apparently considers that the appeal of death was still legally existent, but
regards it as unimportant in view of the pardoning power and other
considerations.818

III.
THE ORDEAL.
CHAPTER I.
UNIVERSAL INVOCATION OF THE JUDGMENT OF GOD.

Although the wager of battle and the other ordeals have much in
common, there is sufficient distinction between them to render convenient
their separate consideration, even at the risk of a little occasional repetition.
The development and career of these forms of the judgment of God were
not in all respects similar, nor was their employment in all cases the same.
The mere fact that the duel was necessarily a bilateral ordeal, to which both
sides had to submit, in itself establishes a limit as to the cases fitted for its
employment, nor were all races of mankind adapted by character for its use.
Moreover, in its origin it was simply a device for regulating under
conditions of comparative fairness the primitive law of force, and the
conception of the intervention of a Divine Power, whereby victory would
enure to the right, probably was a belief subsequently engrafted on it. In the
other ordeals this is the fundamental idea on which they were based, and we
may perhaps assume that they represent a later development in human
progress, in which brute strength has declined somewhat from its earliest
savage supremacy, and a reliance upon the interposition of a superhuman
agency, whether the spirit of a fetish or an omnipotent and just Godhead,
single or multiform, has grown sufficiently strong to be a controlling
principle in the guidance of daily life.
Yet this, too, is only a step in the evolution of human thought, before it
can grasp the conception of an Omnipotence that shall work out its destined
ends, and yet allow its mortal creatures free scope to mould their own
fragmentary portions of the great whole—a Power so infinitely great that its
goodness, mercy, and justice are compatible with the existence of evil in the
world which it has formed, so that man has full liberty to obey the dictates
of his baser passions, without being released from responsibility, and, at the
same time, without disturbing the preordained results of Divine wisdom and

beneficence. Accordingly, we find in the religious history of almost all races
that a belief in a Divine Being is accompanied with the expectation that
special manifestations of power will be made on all occasions, and that the
interposition of Providence may be had for the asking, whenever man, in
the pride of his littleness, condescends to waive his own judgment, and
undertakes to test the inscrutable ways of his Creator by the touchstone of
his own limited reason. Thus miracles come to be expected as matters of
every-day occurrence, and the laws of nature are to be suspended whenever
man chooses to tempt his God with the promise of right and the threat of
injustice to be committed in His name.
To this tendency of the human mind is attributable the almost universal
adoption of the so-called Judgment of God, by which men, oppressed with
doubt, have essayed in all ages to relieve themselves from responsibility by
calling in the assistance of Heaven. Nor, in so doing, have they seemed to
appreciate the self-exaltation implied in the act itself, but in all humility
have cast themselves and their sorrows at the feet of the Great Judge,
making a merit of abnegating the reason which, however limited, has been
bestowed to be used and not rejected. In the Carlovingian Capitularies there
occurs a passage, dictated doubtless by the spirit of genuine trust in God,
which well expresses the pious sentiments presiding over acts of the
grossest practical impiety. “Let doubtful cases be determined by the
judgment of God. The judges may decide that which they clearly know, but
that which they cannot know shall be reserved for Divine judgment. Whom
God hath kept for his own judgment may not be condemned by human
means. ‘Therefore judge nothing before the time, until the Lord come, who
both will bring to light the hidden things of darkness, and will make
manifest the counsels of the hearts’”819 (1 Cor. iv. 5). That Heaven would
interpose to save the guiltless was taught in too many ways to admit of
doubt. An innocent man, we are told, was accused of a murder and pursued
till he took refuge in the cell of St. Macarius, who at once proposed to
determine the question of his guilt by an appeal to God. Adjourning to the
grave of the slain the saint addressed a prayer to Christ and then called upon
the dead man to declare whether the accused had killed him. A voice from
the tomb responded in the negative and the fugitive was released; but when
the saint was asked to pursue the investigation and ascertain the name of the

murderer, he replied that this was none of his duty, for the sinner might
already have repented.820
The superstition which we here find dignified with the forms of Christian
faith manifests itself among so many races and under such diverse stages of
civilization that it may be regarded as an inevitable incident in human
evolution, only to be outgrown at the latest periods of development. In this,
however, as in so many other particulars, China furnishes virtually an
exception. Her arrested thought exhibits itself, in the King or sacred books
collected by Confucius five hundred years before the Christian era, in
nearly the same form as is found in the orthodox opinion of to-day. In this,
religious belief is but a system of cold morality, which avoids the virtues as
well as the errors of more imaginative faiths. In the most revered and
authoritative of the Chinese Scriptures, the Shu-King, or Holy Book, we
find a theo-philosophy based on a Supreme Power, Tai-Ki, or Heaven,
which is pure reason, or the embodiment of the laws and forces of nature
acting under the pressure of blind destiny. It is true that some forms of
divination were practised, and even enjoined, but no fuller expression of
belief in direct interposition from above is to be found than that contained
in the saying attributed to Muh-Wang (about 1000 B. C.) in his instructions
to his judges in criminal cases: “Say not that Heaven is unjust; it is man
who brings these evils on himself. If it were not that Heaven inflicts these
severe punishments the world would be ungoverned.”821 It is, therefore, in
strict compliance with this philosophy that in the modern jurisprudence of
China there is no allusion to any evidence save that of facts duly
substantiated by witnesses, and even oaths are neither required nor admitted
in judicial proceedings.822
These teachings, however, are too refined and sublimated for ordinary
human nature, and along-side of official Confucianism, Taoism and
Buddhism flourish with a wealth of legends and marvels that may fairly
rival the most exuberant fancies of Teutonic or Latin mediævalism. In the
popular mind, therefore, the divine interposition may perpetually be
expected to vindicate innocence and to punish crime, and moral teaching to
a great extent consists of histories illustrating this belief in all its phases and
in every possible contingency of common-place life. Thus it is related that
in A. D. 1626 the learned Doctor Wang-i had two servants, one stupid and

the other cunning. The latter stole from his master a sum of money, and
caused the blame to fall upon his comrade, who was unable to justify
himself. By way of securing him, he was tied to a flagstaff, and his accuser
was set to watch him through the night. At midnight the flagstaff broke in
twain with a loud noise, the upper portion falling upon the guilty man and
killing him, while the innocent was left unhurt; and next morning, when the
effects of the dead man were examined, the stolen money was found among
them, thus completely establishing the innocence of his intended victim.823
Popular beliefs such as these naturally find their expression in irregular
judicial proceedings, in spite of the strict materialism of the written law,
and, at least in some parts of China, a curious form of the ordeal of chance
is employed in default of testimony. If an injured husband surprises his wife
flagrante delicto he is at liberty to slay the adulterous pair on the spot; but
he must then cut off their heads and carry them to the nearest magistrate,
before whom it is incumbent on him to prove his innocence and
demonstrate the truth of his story. As external evidence is not often to be
had in such cases, the usual mode of trial is to place the heads in a large tub
of water, which is violently stirred. The heads, in revolving, naturally come
together in the centre, when, if they meet back to back, the victims are
pronounced guiltless, and the husband is punished as a murderer; but if they
meet face to face, the truth of his statement is accepted as demonstrated, he
is gently bastinadoed to teach him that wives should be more closely
watched, and is presented with a small sum of money wherewith to
purchase another spouse.824
The cognate civilization of Japan yields even more readily to the
temptation of seeking from the Deity a solution of doubt. Anciently there
were in general use the judgments of God, so well known in mediæval
Europe, of the wager of battle and the ordeal of boiling water, and the latter
is still customarily employed among the Ainos, or aborigines. Even yet two
antagonists may be seen to plunge their hands in scalding water, the one
who suffers the most being convicted, while the innocent is expected to
escape with injuries so slight that they will readily heal.825

Turning to the still savage races of the old world we everywhere find
these superstitions in full force. Africa furnishes an ample store of them,
varying from the crudest simplicity to the most deadly devices. Among the
Kalabarese the afia-edet-ibom is administered with the curved fang of a
snake, which is dexterously inserted under the lid and around the ball of the
eye of the accused; if innocent, he is expected to eject it by rolling the eye,
while, if unable to do so, it is removed with a leopard’s tooth, and he is
condemned. Even ruder, and more under the control of the operator, is the
afia-ibnot-idiok, in which a white and a black line are drawn on the skull of
a chimpanzee: this is held up before the defendant, when an apparent
attraction of the white line towards him demonstrates his innocence, or an
inclination of the black line in his direction pronounces his guilt. More
formidable than these is the ordeal-nut, containing a deadly poison which
causes frothing at the mouth, convulsions, paralysis, and speedy death. In
capital cases, or even when sickness is attributed to hostile machinations,
the abiadiong, or sorcerer, decides who shall undergo the trial; and as the
active principle of the nut can be extracted by preliminary boiling, judicious
liberality on the part of the individual selected is supposed to render the
ordeal comparatively harmless.826
Throughout a wide region of Western Africa, one of the most popular
forms of ordeal is that of the red water, or “sassy-bark.” In the
neighborhood of Sierra-Leone, as described by Dr. Winterbottom, it is
administered by requiring the accused to fast for twelve hours, and then to
swallow a small quantity of rice. After this the infusion of the bark is taken
in large quantities, as much as a gallon being sometimes employed; if it
produces emesia, so as to eject all of the rice, the proof of innocence is
complete, but if it fails in this, or if it acts as a purgative, the accused is
pronounced guilty. It has narcotic properties, also, a manifestation of which
is likewise decisive against the sufferer. Among some of the tribes this is
determined by placing on the ground small sticks about eighteen inches
apart, or by forming an archway of limbs of trees bent to the ground, and
requiring the patient to pick his way among them, a feat rendered difficult
by the vertiginous effects of the poison. Although death not infrequently
results from the ordeal itself, yet the faith reposed in these trials is so
absolute that, according to Dr. Livingston, they are demanded with
eagerness by those accused of witchcraft, confident in their own innocence

and believing that the guilty alone can suffer. When the red water is
administered for its emetic effects, the popular explanation is that the fetish
enters with the draught, examines the heart of the accused, and, on finding
him innocent, returns with the rice as evidence.827 A system directly the
reverse of all this is found in Ashantee, where sickness in the ordeal is a
sign of innocence, and the lex talionis is strictly observed. When evidence is
insufficient to support a charge, the accuser is made to take an oath as to the
truth of his accusation, and the defendant is then required to chew a piece of
odum wood and drink a pitcher of water. If no ill effects ensue, he is
deemed guilty, and is put to death; while if he becomes sick, he is acquitted
and the accuser suffers in his stead.828
Further to the east in the African continent, the Niam-Niam and the
neighboring tribes illustrate the endless variety of form of which the ordeal
is susceptible. These savages resort to various kinds of divination which are
equally employed as a guidance for the future in all important undertakings,
and as means to discover the guilt or the innocence of those accused of
crime. The principal of these is the borru, in which two polished pieces of
damma wood are rubbed together, after being moistened with a few drops
of water. If they glide easily on each other the sign is favorable; if they
adhere together it is unfavorable. Life and death are also brought in play,
but vicarious victims are made the subject of experiment. Thus a cock is
taken and its head is repeatedly immersed in water until the creature is rigid
and insensible; if it recovers, the indication is favorable, if it dies, adverse.
Or an oil extracted from the bengye wood is administered to a hen, and the
same conclusions are drawn from its survival or death.829
The Somali of Ethiopia employ the ordeals of red-hot iron and boiling
water or oil in virtually the same form as we shall see them used in India
and Europe, examining the hand of the accused after twenty-four hours to
determine his guilt from its condition.830
In Madagascar the poison ordeal is customarily administered, with a
decoction of the deadly nut of the Tangena (Tanghinia venenifera). One of
the modes of its application is evidently based on the same theory as the
ordeal of red water and rice, to which it bears a notable resemblance. A fowl
is boiled, and three pieces of its skin are placed in the broth. Then a cupful
of the decoction of the Tangena nut is given to the accused, followed by the

same quantity of the broth, with the pieces of skin. Unless the poison
speedily causes vomiting, it soon kills the patient, which is a satisfactory
proof of his guilt. If vomiting ensues, it is kept up by repeated doses of the
broth and warm water, and if the bits of skin are ejected the accused is
declared innocent; but if they are retained he is deemed convicted and is
summarily despatched with another bowl of the poison. In the persecutions
of 1836 and 1849 directed against the Malagasy Christians, many of the
converts were tried with the Tangena nut, and numbers of them perished.831
The ordeals of red-hot iron and boiling water are also used.832
Springing from the same belief is the process used in Tahiti for
discovering the criminal in cases of theft. The priest, when applied to, digs a
hole in the clay floor of his hut, fills it with water, and stands over it with a
young plantain in his hand, while invoking his god. The deity thereupon
conducts the spirit of the thief over the water, and his reflection is
recognized by the priest.833
The races of the Indian archipelago are fully equipped with resources of
the same kind for settling doubtful cases. Among the Dyaks of Borneo
questions for which no other solution is apparent are settled by giving to
each litigant a lump of salt, which they drop simultaneously into water, and
he whose lump dissolves soonest is adjudged the loser; or each takes a
living shell and places it on a plate, when lime-juice is squeezed over them,
and the one whose shell first moves under this gentle stimulant is declared
the winner.834
In the Philippines there are various peculiar ordeals in use. A needle is
sometimes thrust into the scalp of two antagonists, and he from whom the
blood flows most profusely is adjudged the loser; or two chickens are
roasted to death and then opened, and the owner of the one which is found
to have the largest liver is defeated.835
The black Australioid Khonds of the hill districts of Orissa confirm the
universality of these practices by customs peculiar to themselves which
may be assumed as handed down by tradition from prehistoric times. Not
only do they constantly employ the ordeals of boiling water and oil and red-
hot iron, which they may have borrowed from their Hindu neighbors, but
they administer judicial oaths with imprecations that are decidedly of the

character of ordeals. Thus an oath is taken on a tiger’s skin with an
invocation of destruction from that animal upon the perjured; or upon a
lizard’s skin whose scaliness is invited upon him who may forswear
himself; or over an ant-hill with an imprecation that he who swears falsely
may be reduced to powder. A more characteristic ordeal is that used in
litigation concerning land, when a portion of earth from the disputed
possession is swallowed by each claimant in the belief that it will destroy
him whose pretensions are false. On very solemn occasions a sheep is killed
in the name of Tari Pennu, the dreadful earth-goddess: rice is then
moistened with its blood, and this is administered, in the full conviction that
she will slay the rash litigant who insults her power by perjury.836
The hill-tribes of Rajmahal, who represent another of the pre-Aryan
Indian races, furnish us with further developments of the same principle, in
details bearing a marked analogy to those practised by the most diverse
families of mankind. Thus the process by which the guilt of Achan was
discovered (Joshua vii. 16-18), and that by which, as we shall see hereafter,
Master Anselm proposed to identify the thief of the sacred vessels of Laon,
are not unlike the ceremony used when a district is ravaged by tigers or by
pestilence, which is regarded as a retribution for sin committed by some
inhabitant, whose identification thus becomes all-important for the salvation
of the rest. In the process known as Satane a person sits on the ground with
a branch of the bale tree planted opposite to him; rice is handed to him to
eat in the name of each village of the district, and when the one is named in
which the culprit lives, he is expected to throw up the rice. Having thus
determined the village, the same plan is adopted with respect to each family
in it, and when the family is identified, the individual is discovered in the
same manner. Another form, named Cherreen, is not unlike the ordeal of
the Bible and key, not as yet obsolete among Christians. A stone is
suspended by a string, and the names of the villages, families, and
individuals are repeated, when it indicates the guilty by its vibrations.
Thieves are also discovered and convicted by these processes, and by
another mode known as Gobereen, which is a modification of the hot-water
ordeal. A mixture of cow-dung, oil, and water is made to boil briskly in a
pot. A ring is thrown in, and each suspected person, after invoking the
Supreme Deity, is required to find and bring out the ring with his hand—the

belief being that the innocent will not be burned, while the guilty will not be
able to put his hand into the pot, as the mixture will rise up to meet it.837
Among the ancient Aztecs the oath assumed the proportions of an ordeal;
the accused in taking it touched with his finger first the ground and then his
tongue, and a perjury thus committed was expected to be followed with
speedy misfortune. So among the Ostiaks and Samoiedes a disculpatory
oath with imprecations taken on the head of a bear is held to have the same
virtue.838

Reverting to the older races, we find no trace of formal ordeals in the
fragmentary remains out of which Egyptologists thus far have succeeded in
reconstructing the antique civilization of the Nile valley, but this is not
attributable to an intellectual development which had cast them aside as
worthless. The intimate dependence of man on the gods, and the daily
interposition of the latter in human affairs, were taught by the prophets of
the temples and reverently accepted by the people. It was merely a question
as to the manner in which the judgment of God was to be obtained, and this
apparently took the form of reference to the oracles which abounded in
every Egyptian nome. In this we are not left to mere conjecture, for a story
related by Herodotus shows that such an interpellation of the divine power
was habitual in prosecutions when evidence of guilt was deficient. Aames
II., before he gained the crown, was noted for his reckless and dissolute life,
and was frequently accused of theft and carried to the nearest oracle, when
he was convicted or acquitted according to the response. On ascending the
throne, he paid great respect to the shrines where he had been condemned,
and neglected altogether those where he had been absolved, saying that the
former gave true and the latter lying responses.839

The Semitic races, while not giving to the ordeal the development which
it has received among the Aryans, still afford sufficient manifestation of its
existence among them. Chaldean and Assyrian institutions have not as yet

been sufficiently explored for us to state with positiveness whether or not
the judgment of God was a recognized resource of the puzzled dispenser of
justice; but the probabilities are strongly in favor of some processes of the
kind being discovered when we are more fully acquainted with their judicial
system. The constant invocation of the gods, which forms so marked a
feature of the cuneiform inscriptions, indicates a belief in the divine
guidance of human affairs which could hardly fail to find expression in
direct appeals for light in the administration of justice. The nearest approach
however to the principle of the ordeal which has thus far been deciphered is
found in the imprecations commonly expressed in contracts, donations, and
deeds, by which the gods are invoked to shed all the curses that can assail
humanity on the heads of those who shall evade the execution of their
plighted faith, or seek to present false claims. Akin to this, moreover, was
the penalty frequently expressed in contracts whereby their violation was to
be punished by heavy fines, the greater part of which was payable into the
treasury of some temple.840
Among the Hebrews, as a rule, the interposition of Yahveh was expected
directly, without the formulas which human ingenuity has invented to invite
and ascertain the decisions of the divine will. Still, the combat of David and
Goliath has been cited as a model and justification of the judicial duel; and
there are some practices described in Scripture which are strictly ordeals,
and which were duly put forth by the local clergy throughout Europe when
struggling to defend the system against the prohibitions of the papacy.
When the man who blasphemed the Lord (Levit. xxiv. 11-16) was kept in
ward “that the mind of the Lord might be showed them,” and the Lord
ordered Moses to have him stoned by the whole congregation, we are not
told the exact means adopted to ascertain the will of Yahveh, but the appeal
was identical in principle with that which prompted the mediæval judgment
of God. The use of the lot, moreover, which was so constantly employed in
the most important and sacred matters, was not a mere appeal to chance, but
was a sacred ceremony performed “before the Lord at the door of the
tabernacle of the congregation” to learn what was the decision of
Yahveh.841 The lot was also used, if not as a regular judicial expedient, at
all events in unusual cases as a mode of discovering criminals, and its
results were held to be the undoubted revelation of Omniscience. It is more
than probable that the Urim and Thummin were lots, and that they were not

infrequently used, as in the cases of Achan and Jonathan.842 And the
popular belief in the efficacy of the lot is manifested in the account of
Jonah’s adventure (Jonah i. 7) when the sailors are described as casting lots
to discover the sinner whose presence brought the tempest upon them. The
most formal and absolute example of the ordeal, however, was the Bitter
Water by which conjugal infidelity was convicted and punished (Numb. v.
11-31). This curious and elaborate ceremony, which bears so marked an
analogy to the poison ordeals, was abandoned by order of R. Johanan ben
Saccai about the time of the Christian era, and is too well known to require
more than a passing allusion to the wealth of Haggadistic legend and the
interminable controversies and speculations to which it has given rise. I
may add, however, that Aben Ezra and other Jewish commentators hold that
when Moses burnt the golden calf and made the Israelites drink the water in
which its ashes were cast (Exod. xxxii. 20), he administered an ordeal, like
that of the Bitter Water, which in some way revealed those who had been
guilty of idolatry, so that the Levites could slay them; and Selden explains
this by reference to a tradition, according to which the gold of the calf
reddened the beards of those who had worshipped it, and thus rendered
them conspicuous.843

The teachings of Mahomet were too directly derived from the later
Judaism for him to admit into his jurisprudence any formal system
depending on miracles to establish justice between man and man whenever
Allah might be invoked to manifest his power. Like the Jews, however, he
taught that the constant supervision of the divine power is spontaneously
exerted, and he carried this so far as to inculcate the belief that a judge pure
from self-seeking would be inspired constantly from above. “He who asks
to be made judge will not be assisted; and he who is made judge by
compulsion, God sends down to him an angel, who causes his actions and
sentences to be just.” To one who hesitated to accept the office, the Prophet
said, “God will direct your heart, and show you judicial ways, and fix your
tongue in truth and justice.” On the other hand, when a judge is unjust, “he
separates from himself the assistance and favor of God, and the devil is
always with him.” It was hard on litigants when the tribunal might be

presided over by either Allah or Eblis, but they had no recourse, except in
the oath, which was the corner-stone of Mahomet’s judicial system. In the
absence of evidence, the oath of the defendant was final, and this incitement
to perjury could only be repressed by investing the oath with the qualities of
the ordeal. Accordingly he lost no opportunity of insisting upon the
punishment, here and hereafter, of those who perjured themselves before
the judgment-seat. Sometimes this failed to deter an eager pleader, and then
he consoled the defeated party with the assurance that his successful
adversary would suffer in the end, as when the chief of the Cindah tribe
urged that a Jew, against whom he brought suit for land unjustly held,
would swear falsely, and the Prophet rejoined, “Swearing is lawful, but he
who takes a false oath will have no luck in futurity.” Tradition relates,
however, that frequently he succeeded thus in frightening those who were
ready to forswear themselves, as when a man of Hadramut claimed land
occupied by a Cindah, and, being without evidence, the defendant was
ready to take the oath, when Mahomet interposed, “No one takes the
property of another by oath but will meet God with his tongue cut off,” and
the Cindah feared God and said, “The land is his.” In another case, when
two men were quarrelling over an inheritance, and neither had a witness, he
warned them, “In whose favor soever I may order a thing which is not his
right, then I lay apart for him nothing less than a piece of hell-fire,”
whereupon each litigant exclaimed, “O messenger of God, I give up my
right to him.” Sometimes, however, even Mahomet had recourse to a more
direct invocation of the supreme power, as in a case wherein two men
disputed as to the ownership of an animal, and neither had witnesses, when
he directed them to cast lots upon oath.844
These cases do not bear out the tradition that, when the Prophet was
perplexed beyond his ability, he had the resource of appealing to the angel
Gabriel for enlightenment. There is one legend respecting him, however,
which manifests the popular belief that in doubtful cases God may be relied
on to interpose for the vindication of innocence. A youth brought before
Mahomet on an accusation of murder, protested that the act was committed
in self-defence. The Prophet ordered the corpse to be entombed, and
postponed the trial until the next day. The brethren of the slain, still
insisting on vengeance, were then told that they might inflict upon the
murderer precisely the same wounds as those which they should find on the

body. On opening the sepulchre for the purpose of ascertaining the exact
measure of the punishment conceded, they returned affrighted to the
judgment-seat, and reported that they had found nothing but the smoke and
stench of Gehenna; whereupon Mahomet pronounced that Eblis had carried
off the corpse of the guilty, and that the accused was innocent.845 The
prevalence of superstitions kindred to this, in spite of the principles laid
down in the law, is shown by the custom which exists among some tribes of
Arabs, of employing the ordeal of red-hot iron in the shape of a gigantic
spoon, to which, when duly heated, the accused applies his tongue, his guilt
or innocence being manifested by his suffering, or escaping injury.846 A
species of vulgar divination, common among the Turks, moreover, belongs
to the same category of thought, as it is used in the detection of thieves by
observing the marks on wax slowly melted, while certain magic formulas
are recited over it.847

It is among the Aryan races that we are to look for the fullest and most
enduring evidences of the beliefs which developed into the ordeal, and gave
it currency from the rudest stages of nomadic existence to periods of
polished and enlightened civilization. In the perfect dualism of Mazdeism,
the Yazatas, or angels of the good creation, were always prompt to help the
pure and innocent against the machinations of Ahriman and his Daevas,
their power to do so depending only upon the righteousness of him who
needed assistance.848 The man unjustly accused, or seeking to obtain or
defend his right, could therefore safely trust that any trial to which he might
be subjected would be harmless, however much the ordinary course of
nature would have to be turned aside in order to save him. Thus Zoroaster
could readily explain and maintain the ancestral practices, the common use
of which by both the Zend and the Hindu branches of the Aryan family
points to their origin at a period anterior to the separation between the
kindred tribes. In the fragments of the Avesta, which embody what remains
to us of the prehistoric law of the ancient Persians, we find a reference to
the ordeal of boiling water, showing it to be an accepted legal process, with
a definite penalty affixed for him who failed to exculpate himself in it:—

“Creator! he who knowingly approaches the hot, golden, boiling
water, as if speaking truth, but lying to Mithra;
“What is the punishment for it?
“Then answered Ahura-Mazda: Let them strike seven hundred
blows with the horse-goad, seven hundred with the craosho-
charana!”849

The fire ordeal is also seen in the legend which relates how Sudabeh, the
favorite wife of Kai Kaoos, became enamored of his son Siawush, and on
his rejecting her advances accused him to his father of endeavoring to
seduce her. Kai Kaoos sent out a hundred caravans of dromedaries to gather
wood, of which two immense piles were built separated by a passage barely
admitting a horseman. These were soaked with naphtha and fired in a
hundred places, when Siawush mounted on a charger, after an invocation to
God, rode through the flames and emerged without even a discoloration of
his garments. Sudabeh was sentenced to death, but pardoned on the
intercession of Siawush.850 Another reminiscence of the same ordeal may
be traced among the crowd of fantastic legends with which the career of
Zoroaster is embroidered. It is related that when an infant he was seized by
the magicians, who foresaw their future destruction at his hands, and was
thrown upon a huge pile composed of wood, naphtha, and sulphur, which
was forthwith kindled; but, through the interposition of Hormazd, “the
devouring flame became as water, in the midst of which slumbered the pearl
of Zardusht.”851
In Pehlvi the judicial ordeal was known as var nirang, and thirty-three
doubtful conjunctures are enumerated as requiring its employment. The
ordinary form was the pouring of molten metal on the body of the patient,
though sometimes the heated substance was applied to the tongue or the
feet.852 Of the former, a celebrated instance, curiously anticipating the story
told, as we shall see hereafter, of Bishop Poppo when he converted the
Danes, is related as a leading incident in the reformation of the Mazdiasni
religion when the Persian monarchy was reconstructed by the Sassanids.
Eighty thousand heretics remained obstinate until Sapor I. was so urgent
with his Magi to procure their conversion that the Dustoor Adurabad
offered to prove the truth of orthodoxy by suffering eighteen pounds of

melted copper to be poured over his naked shoulders if the dissenters would
agree to yield their convictions in case he escaped unhurt. The bargain was
agreed to, and carried out with the happiest results. Not a hair of the
Dustoor’s body was singed by the rivulets of fiery metal, and the recusants
were gathered into the fold.853
Among the Hindu Aryans so thoroughly was the divine interposition
expected in the affairs of daily life that, according to the Manava Dharma
Sastra, if a witness, within a week after giving testimony, should suffer
from sickness, or undergo loss by fire, or the death of a relation, it was held
to be a manifestation of the divine wrath, drawn down upon him in
punishment for perjured testimony.854 There was, therefore, no inducement
to abandon the resource of the ordeal, of which traces may be found as far
back as the Vedic period, in the forms both of fire and red-hot iron.855 In the
Ramayana, when Rama, the incarnate Vishnu, distrusts the purity of his
beloved Sita, whom he has rescued from the Rakshasha Ravana, she
vindicates herself by mounting a blazing pyre, from which she is rescued
unhurt by the fire-god, Agni, himself.856 Manu declares, in the most
absolute fashion—

“Let the judge cause him who is under trial to take fire in his hand,
or to plunge in water, or to touch separately the heads of his children
and of his wife.
“Whom the flame burneth not, whom the water rejects not from its
depths, whom misfortune overtakes not speedily, his oath shall be
received as undoubted.
“When the Rishi Vatsa was accused by his young half-brother, who
stigmatized him as the son of a Sudra, he swore that it was false, and,
passing through fire, proved the truth of his oath; the fire, which attests
the guilt and the innocence of all men, harmed not a hair of his head,
for he spake the truth.”

And the practical application of the rule is seen in the injunction on both
plaintiff and defendant to undergo the ordeal, even in certain civil cases.857

In the more developed code of Vishnu we find the ordeal system
exceedingly complicated, pervading every branch of jurisprudence and only
limited by the amount at stake or the character or caste of the defendant.858
Yet Hindu antiquity is so remote and there have been so many schools of
teachers that the custom apparently did not prevail in all times and places.
One of the most ancient books of law is the Dharmasastra of Gautama, who
says nothing of ordeals and relies for proof wholly on the evidence of
witnesses, adding the very relaxed rule that “No guilt is incurred in giving
false evidence in case the life of a man depends thereon.”859
This, however, is exceptional, and the ordeal maintained its existence
from the most ancient periods to modern times. Under the name of
purrikeh, or parikyah, it is prescribed in the native Hindu law in all cases,
civil and criminal, which cannot be determined by written or oral evidence,
or by oath, and is sometimes incumbent upon the plaintiff and sometimes
upon the defendant. In its various forms it bears so marked a resemblance to
the judgments of God current in mediæval Europe that the further
consideration of its use in India may be more conveniently deferred till we
come to discuss its varieties in detail, except to add that in Hindu, as in
Christian courts, it has always been a religious as well as a judicial
ceremony, conducted in the presence of Brahmans, and with the use of
invocations to the higher powers.860

Buddhism naturally followed the legal institutions which it found
established, and accepted the ordeal, though it could scarce form a logical
incident in the great system of transmigration whereby the good and evil of
the universe distributed itself automatically, without supervision from the
thirty-two heavens. We have seen the influence which Buddhism exercised
on Chinese materialism, and Tibetan Shamanism could hardly expect to
escape it. Thus in Tibet we find the hot water ordeal assume a form which is
literally even-handed, and which, if generally enforced, must exert a
happily repressive influence over litigation. Both plaintiff and defendant
thrust their arms into a caldron of boiling water containing a black and a
white stone, the verdict being in favor of him who brings up the white.861

The Hellenic tribes had already, in prehistoric times, reached a point of
mental development superior to the grosser forms of the ordeal as a
recognized instrument of judicial investigation. These were replaced, as we
have seen in Egypt, by habitual resort to oracles, but that some recollection
of the ancestral practices was handed down to later ages is shown by the
allusions in the Antigone of Sophocles, when the guards protest to Creon
their innocence as to the burial of Polynices, and offer to prove it by the
ordeal:—
“Ready with hands to bear the red-hot iron,
To pass through fire, and by the gods to swear
That we nor did the deed, nor do we know
Who counselled it, or who performed it” (264-267).
And a remnant of the primæval customs was preserved in the solemnities
under which litigation was sometimes determined by one of the parties
taking an oath on the heads of his children, or with curses on himself and
his family, or passing through fire.862 The poison ordeal, also, was not
wholly obsolete. The Gæum or temple of the broad-breasted Earth, Gæa
Eurysternus, at Ægæ in Achaia, was served by a priestess who, though not
necessarily a virgin, was yet required to preserve strict celibacy when once
invested with her sacred functions. If any doubts arose as to her virtue, it
was tested with a draught of bull’s blood, which speedily wrought her
punishment if she was guilty. The same temple also furnished an illustration
of ascertaining the divine will by means of the lot, for when a vacancy
occurred in the priestship, and there were several applicants, the choice
between them was determined by a reference to chance.863
Even these traces of the ancient customs of the race disappear among the
Latins, though they preserved in full force the habits of thought from which
the ordeal took its rise. This is seen in the most solemn form of imprecation
known to the Romans as lending irrevocable force to promissory oaths—the
“Jovem lapidem jurare,”—whether we take the ceremony mentioned by
Festus, of casting a stone from the hand while adjuring Jupiter to reject in
like manner the swearer if he should prove forsworn, or the form described
by Livy as preceding the combat between the Horatii and Curiatii, in which

a victim was knocked on the head with a stone under a somewhat similar
invocation.864 Even without this ceremony, imprecatory oaths were used
which were based on the belief that the gods would take men at their word
and punish them, for forswearing themselves, with the evils which they thus
invoked. Thus, after the battle of Cannæ, P. Cornelius Scipio forced the
nobles who were plotting to leave Italy to abandon their design and take an
oath in which they adjured Jupiter to visit them and all belonging to them
with the worst of deaths if they proved false.865 In the legends of Rome,
moreover, sporadic instances may be found of special miraculous
interposition to decide the question of innocence or guilt, when the gods
properly appealed to would intervene to save their worshippers. These
manifestations were principally vouchsafed in favor of the Vestals, as when
the pupil of Æmilia was accused of having allowed the sacred fire to be
extinguished, and was preserved by its spontaneous ignition on her placing
the skirt of her garment upon the altar; or when Tucca, falsely arraigned for
unchastity, vindicated her purity by carrying water in a sieve; or when
Claudia Quinta, under a similar charge, made good her defence by
dragging, with a slender cord, a ship against the rapid current of the Tiber
after it had run aground and resisted all efforts to move it—and this with an
invocation to the goddess to absolve or condemn her, as she was innocent or
guilty, which gives to the affair a marked resemblance to an established
form of judicial ordeal.866 Occasional instances such as these had, however,
no influence on the forms and principles of Roman jurisprudence, which
was based on reason and not on superstition. With the exception of the use
of torture, as we shall see hereafter, the accused was not required to
exculpate himself. He was presumed to be innocent, and the burden of
proof lay not on him but on the prosecutor. The maxim of the civil law
—“Accusatore non probante, reus absolvitur”—is entirely incompatible
with the whole theory upon which the system of ordeals is based.867

The barbarian Aryans who occupied Europe brought with them the
ancestral beliefs in a form more easily recognizable than the remnants
which survived through Hellenic and Italiote civilization. The Feini, or Irish
Celts, boasted that their ancient Brehons, or judges, were warned by

supernatural manifestations as to the equity of the judgments which they
rendered. Sometimes these took the shape of blotches on their cheeks when
they pronounced false judgments. Sen Mac Aige was subject to these
marks, but with him they disappeared when he decided righteously, while
Sencha Mac Aillila was less fortunate, for he was visited with three
permanent blotches for each mistake. Fachtna received the surname of
Tulbrethach because, whenever he delivered a false judgment, “if in the
time of fruit, all the fruit in the territory in which it happened fell off in one
night; if in time of milk, the cows refused their calves; but if he passed a
true judgment, the fruit was perfect on the trees.” Morann never pronounced
a judgment without wearing around his neck a chain, which tightened upon
him if the judgment was false, but expanded down upon him if it were true.
These quaint legends have their interest as manifesting the importance
attached by the ancient Irish to the impartial administration of absolute
justice, and the belief entertained that a supernatural power was ever on the
watch over the tribunals, but these manifestations were too late to arrest
injustice, as they did not occur until after it was committed. The Feini
therefore did not abandon the ancient resource of the ordeal, as is shown by
a provision in the Senchus Mor, which grants a delay of ten days to a man
obliged to undergo the test of boiling water.868 The Celts of the Rhinelands
also had a local custom of determining the legitimacy of children by an
ordeal of the purest chance, which became a common-place of Roman
rhetoric, and is thus described in the Anthology:—
Θαρσαλέοι Κελτοὶ ποταμῷ ζηλήμονι Ρήνω χ. τ. λ.

Upon the waters of the jealous Rhine
The savage Celts their children cast, nor own
Themselves as fathers till the power divine
Of the chaste river shall the truth make known.
Scarce breathed its first faint cry, the husband tears
Away the new-born babe, and to the wave
Commits it on his shield, nor for it cares
Till the wife-judging stream the infant save,
And prove himself the sire. All trembling lies
The mother, racked with anguish, knowing well
The truth, but forced to risk her cherished prize
On the inconstant waters’ reckless swell.869
The Teutonic tribes, anterior to their conversion, likewise exhibit the
ordeal as a recognized resource in judicial proceedings. The Norræna
branch, as we have seen, cultivated the holm-gang, or duel, with ardor, and
they likewise employed the hot-water ordeal, besides a milder form peculiar
to themselves entitled the skirsla, in which one of the parties to a suit could
prove the truth of his oath by passing under a strip of turf raised so that it
formed an arch with each end resting on the ground, the belief being that if
he had forsworn himself the turf would fall on him as he passed beneath
it.870 The Germanic tribes, in their earliest jurisprudence, afford similar
evidence of adherence to the customs of their eastern brethren. The most
ancient extant recension of the Salic law may safely be assumed as coeval
with the conversion of Clovis, as it is free from all allusions to Christian
rules, such as appear in the later versions, and in this the trial by boiling
water finds its place as a judicial process in regular use.871 Among the
Bavarians, the decree of Duke Tassilo in 772 condemns as a relic of pagan
rites a custom named stapfsaken, used in cases of disputed debt, which is
evidently a kind of ordeal from the formula employed, “Let us stretch forth
our right hands to the just judgment of God!”872
The Slavs equally bear witness to the ancestral practice of the ordeal as a
judicial process. The prauda jeliezo, or hot-iron ordeal, was in use among
them in early times.873 In Bohemia, the laws of Brzetislas, promulgated in
1039, make no allusion to any other form of evidence in contested cases,

while in Russia it was the final resort in all prosecutions for murder, theft,
and false accusation.874
As the Barbarians established themselves on the ruins of the Roman
Empire and embraced Christianity they, with one exception, cultivated the
institution of the ordeal with increased ardor. This exception is found in the
Gothic nations, and is ascribable, as we have seen when treating of the
judicial combat, to the influence of the Roman customs and laws which
they adopted. For nearly two centuries after their settlement, there is no
allusion in their body of laws to any form of ordeal. It was not until 693,
long after the destruction of their supremacy in the south of France, and but
little prior to their overthrow in Spain by the Saracens, that King Egiza,
with the sanction of a Council of Toledo, issued an edict commanding the
employment of the æneum or ordeal of boiling water.875
Various causes were at work among the other tribes to stimulate the favor
with which the ordeal was regarded. As respects the wager of battle I have
already traced its career as a peculiarly European form of the Judgment of
God, which was fostered by the advantage which it gave, in the times of
nascent feudalism, to the bold and reckless. With regard to the other forms,
one reason for their increased prevalence is doubtless to be found in the
universal principle of the Barbarians, in their successive settlements, to
allow all races to retain their own jurisprudence, however much individuals
might be intermingled, socially and politically. The confusion to which this
gave birth is well set forth by St. Agobard, when he remarks that frequently
five men shall be found in close companionship, each one owning
obedience to a different law. He also states that under the Burgundian rules
of procedure, no one was allowed to bear witness against a man of different
race.876 Under these circumstances, in a large proportion of cases there
could be no legal evidence attainable, and recourse was had of necessity to
the Judgment of God. Even when this rule was not in force, a man who
appealed to Heaven against the testimony of a witness of different origin
would be apt to find the court disposed to grant his request. If the judge,
moreover, was a compatriot of one of the pleaders, the other would
naturally distrust his impartiality, and would prefer to have the case decided
by the Omniscient whose direct interposition he was taught to regard as
undoubted. That the assumed fairness of the ordeal was highly prized under

such circumstances we have evidence in the provisions of a treaty between
the Welsh and the Saxons, about the year 1000, according to which all
questions between individuals of the two races were to be settled in this
manner, in the absence of a special agreement between the parties.877
The most efficient cause of the increased use of the ordeal was, however,
to be found in the Church. With her customary tact, in converting the
Barbarians, she adopted such of their customs as she could adapt to
Christian belief and practice; and she accepted the ordeal as an undoubted
appeal to God, whose response was regarded as unquestionable, warrant
being easily found for this in the Jewish practices already described. The
pagan ceremonies were moulded into Christian rites, and the most solemn
forms of religion were thrown around the rude expedients invented
thousands of years before by the Bactrian nomads. Elaborate rituals were
constructed, including celebration of mass and impressive prayers,
adjurations and exorcisms of the person to undergo the trial and of the
materials used in it, and the most implicit faith was inculcated in the
interposition of God to defend the right and to punish guilt.878 The
administration of the ordeal being thus reserved for priestly hands, the
Church acquired a vastly increased influence as the minister of justice, to
say nothing of the revenues thence arising, and the facility with which
ecclesiastics could thus defend themselves when legally assailed by their
turbulent flocks. We are not without evidence of the manner in which the
church thus favored the use of this Christianized paganism, and introduced
it along with Christianity among people to whom it was previously
unknown. Thus among the Turanian Majjars, the laws of King Stephen,
promulgated in 1216, soon after his conversion, contain no allusion to the
ordeal, but in those of Ladislas and Coloman, issued towards the end of the
century, it is found, in its various forms, thoroughly established as a means
of legal proof.879 So, when in the twelfth century Bishop Geroldus
converted the Slavs of Mecklenburg, they were at once forbidden to settle
questions by oaths taken on trees, fountains, and stones, as before, but were
required to bring their criminals before the priest to be tried by the hot iron
or ploughshares.880 Under the Crusaders, the ordeal was carried back
towards the home of its birth, even contaminating the Byzantine
civilization, and various instances of its use are related by the historians of
the Lower Empire to a period as late as the middle of the fourteenth century.

The ingenuity of the church and the superstition of the people increased
somewhat the varieties of the ordeal which we have seen employed in the
East. Besides the judicial combat, the modes by which the will of Heaven
was ascertained may be classed as the ordeal of boiling water, of red-hot
iron, of fire, of cold water, of the balance, of the cross, of the corsnœd or
swallowing bread or cheese, of the Eucharist, of the lot, bier-right, oaths on
relics, and poison ordeals. In some of these, it will be seen, a miraculous
interposition was required for an acquittal, in others for a condemnation;
some depended altogether on volition, others on the purest chance; while
others, again, derived their efficacy from the influence exerted over the
mind of the patient.

CHAPTER II.
THE ORDEAL OF BOILING WATER.

The ordeal of boiling water (æneum, judicium aquæ ferventis, cacabus,
caldaria) is the one usually referred to in the most ancient texts of laws. It
was a favorite both with the secular and ecclesiastical authorities, and the
manner in which the pagan usages of the ancient Aryans were adopted and
rendered orthodox by the Church is well illustrated by the commendation
bestowed on it by Hincmar, Archbishop of Reims, in the ninth century. It
combines, he says, the elements of water and of fire; the one representing
the deluge—the judgment inflicted on the wicked of old; the other
authorized by the fiery doom of the future—the day of judgment, in both of
which we see the righteous escape and the wicked suffer.881 There were
several minor variations in its administration, but none of them departed to
any notable extent from the original form as invented in the East. A caldron
of water was brought to the boiling-point, and the accused was obliged with
his naked hand to find a small stone or ring thrown into it; sometimes the
latter portion was omitted, and the hand was simply inserted, in trivial cases
to the wrist, in crimes of magnitude to the elbow; the former being termed
the single, the latter the triple ordeal;882 or, again, the stone was employed,
suspended by a string, and the severity of the trial was regulated by the
length of the line, a palm’s breadth being counted as single, and the distance
to the elbow as triple.883 A good example of the process, in all its details, is
furnished us by Gregory of Tours, who relates that an Arian priest and a
Catholic deacon, disputing about their respective tenets, and being unable to
convince each other, the latter proposed to refer the subject to the decision
of the æneum, and the offer was accepted. Next morning the deacon’s
enthusiasm cooled, and he mingled his matins with precautions of a less
spiritual nature, by bathing his arm in oil, and anointing it with protective
unguents. The populace assembled to witness the exhibition, the fire was
lighted, the caldron boiled furiously, and a little ring thrown into it was
whirled around like a straw in a tornado, when the deacon politely invited
his adversary to make the trial first. This was declined, on the ground that
precedence belonged to the challenger, and with no little misgiving the
deacon proceeded to roll up his sleeve, when the Arian, observing the

precautions that had been taken, exclaimed that he had been using magic
arts, and that the trial would amount to nothing. At this critical juncture,
when the honor of the orthodox faith was trembling in the balance, a
stranger stepped forward—a Catholic priest named Jacintus, from Ravenna
—and offered to undergo the experiment. Plunging his arm into the
bubbling caldron, he was two hours in capturing the ring, which eluded his
grasp in its fantastic gyrations; but finally, holding it up in triumph to the
admiring spectators, he declared that the water felt cold at the bottom, with
an agreeable warmth at the top. Fired by the example, the unhappy Arian
boldly thrust in his arm; but the falseness of his cause belied the confidence
of its rash supporter, and in a moment the flesh was boiled off the bones up
to the elbow.884
This was a volunteer experiment. As a means of judicial investigation,
the Church, in adopting it with the other ordeals, followed the policy of
surrounding it with all the solemnity which her most venerated rites could
impart, thus imitating, no doubt unconsciously, the customs of the Hindus,
who, from the earliest times, have made the ordeal a religious ceremony, to
be conducted by Brahmans, with invocations to the divine powers, and to
be performed by the patient at sunrise, immediately after the prescribed
ablutions, and while yet fasting.885 With the same object, in the European
ordeal, fasting and prayer were enjoined for three days previous, and the
ceremony commenced with special prayers and adjurations, introduced for
the purpose into the litany, and recited by the officiating priests; mass was
celebrated, and the accused was required to partake of the sacrament under
the fearful adjuration, “This body and blood of our Lord Jesus Christ be to
thee this day a manifestation!” This was followed by an exorcism of the
water, of which numerous formulas are on record, varying in detail, but all
manifesting the robust faith with which man assumed to control the action
of his Creator. A single specimen will suffice.

“O creature of water, I adjure thee by the living God, by the holy
God who in the beginning separated thee from the dry land; I adjure
thee by the living God who led thee from the fountain of Paradise, and
in four rivers commanded thee to encompass the world; I adjure thee
by Him who in Cana of Galilee by His will changed thee to wine, who
trod on thee with His holy feet, who gave thee the name Siloa; I adjure

thee by the God who in thee cleansed Naaman, the Syrian, of his
leprosy;—saying, O holy water, O blessed water, water which washest
the dust and sins of the world, I adjure thee by the living God that thou
shalt show thyself pure, nor retain any false image, but shalt be
exorcised water, to make manifest and reveal and bring to naught all
falsehood, and to make manifest and bring to light all truth; so that he
who shall place his hand in thee, if his cause be just and true, shall
receive no hurt; but if he be perjured, let his hand be burned with fire,
that all men may know the power of our Lord Jesus Christ, who will
come, with the Holy Ghost, to judge with fire the quick and the dead,
and the world! Amen!”886

After the hand had been plunged in the seething caldron, it was carefully
enveloped in a cloth, sealed with the signet of the judge, and three days
afterwards it was unwrapped, when the guilt or innocence of the party was
announced by the condition of the member.887 By way of extra precaution,
in some rituals it is ordered that during this interval holy water and blessed
salt be mingled in all the food and drink of the patient—presumably to avert
diabolic interference with the result.888
The judicial use of this ordeal is shown in a charter of the monastery of
Sobrada in Galicia, when, about 987, the Bishop of Lugo claimed of it for
his church the manor of Villarplano. After a vain effort to decide the
question by evidence, the representatives of the monastery took a solemn
oath as to its rights and offered to confirm it by the pæna caldaria. In the
church of San Juliano some fifty or sixty notables from both sides
assembled; a monk named Salamiro was conducted to the boiling caldron
by a person representing each claimant, and there he drew forth ten stones
from the bubbling water. His arm was sealed up and three or four days later
was exhibited uninjured to the assembly. The proof was conclusive and the
Bishop of Lugo abandoned his claim.889
The justification of this mode of procedure by its most able defender,
Hincmar of Reims, is similar in spirit to the above form of adjuration. King
Lothair, great-grandson of Charlemagne, desiring to get rid of his wife,
Teutberga, accused her of the foulest incest, and forced her to a confession,
which she afterwards recanted, proving her innocence by undergoing the

ordeal of hot water by proxy. Lothair, nevertheless, married his concubine
Waldrada, and for ten years the whole of Europe was occupied with the
degrading details of the quarrel, council after council assembling to
consider the subject, and the thunders of Rome being freely employed.
Hincmar, the most conspicuous ecclesiastic of his day, stood boldly forth in
defence of the unhappy queen, and in his treatise “De Divortio Lotharii et
Teutbergæ,” although no one at the time seriously thought of impugning the
authority of ordeals in general, it suited his purpose to insist upon their
claims to infallibility. His line of argument shows how thoroughly the pagan
custom had become Christianized, and how easily the churchman could find
reasons for attributing to God the interposition which his ancestors had
ascribed to Mithra, or to Agni, or to Thor. “Because in boiling water the
guilty are scalded and the innocent are unhurt, because Lot escaped
unharmed from the fire of Sodom, and the future fire which will precede the
terrible Judge will be harmless to the Saints, and will burn the wicked as in
the Babylonian furnace of old.”890
In the Life of St. Ethelwold is recorded a miracle, which, though not
judicial, yet, from its description by a contemporary, affords an insight into
the credulous faith which rendered lawgivers ready to intrust the most
important interests to decisions of this nature. The holy saint, while Abbot
of Abingdon, to test the obedience of Elfstan the cook of the monastery,
ordered him to extract with his hand a piece of meat from the bottom of a
caldron in which the conventual dinner was boiling. Without hesitation the
monk plunged his hand into the seething mass and unhurt presented the
desired morsel to his wondering superior. Faith such as this could not go
unrewarded, and Elfstan, from his humble station, rose to the episcopal seat
of Winchester.891
This form of trial was in use among all the races in whose legislation the
purgatio vulgaris found place. It is the only mode alluded to in the Salic
Law, from the primitive text to the amended code of Charlemagne.892 The
same may be said of the Wisigoths, as we have already seen; while the
codes of the Frisians, the Anglo-Saxons, and the Lombards, all refer cases
to its decision.893 In Iceland, it was employed from the earliest times;894 in
the primitive jurisprudence of Russia its use was enjoined in cases of minor
importance,895 and it continued in vogue throughout Europe until the

general discredit attached to this mode of judgment led to the gradual
abandonment of the ordeal as a legal process. It is among the forms
enumerated in the sweeping condemnation of the whole system, in 1215, by
Innocent III. in the Fourth Council of Lateran; but even subsequently we
find it prescribed in certain cases by the municipal laws in force throughout
the whole of Northern and Southern Germany,896 and as late as 1282 it is
specified in a charter of Gaston of Béarn, conferring on a church the
privilege of holding ordeals.897 At a later date, indeed, it was sometimes
administered in a different and more serious form, the accused being
expected to swallow the boiling water. I have met with no instances
recorded of this, but repeated allusions to it by Rickius show that it could
not have been unusual.898 Another variant is seen in the case of a monk who
had brought the body of St. Helena to his convent and was forced to prove
its genuineness by complete immersion in boiling water—a trial which he
endured successfully.899
The modern Hindoo variety of this ordeal consists in casting a piece of
gold or a metal ring into a vessel of boiling ghee, or sesame oil, of a
specified size and depth. Sacrifices are offered to the gods, a mantra, or
Vedic prayer, is uttered over the oil, which is heated until it burns a fresh
peepul leaf, and if the person on trial can extract the ring between his finger
and thumb, without scalding himself, he is pronounced victorious.900 In
1783 a case is recorded as occurring at Benares, in which a Brahman
accused a linen-painter of theft, and as there was no other way of settling
the dispute, both parties agreed to abide by the result of the ordeal. At that
time the East India Company was endeavoring to discountenance this
superstition, but could not venture to abolish it forcibly, and as persuasion
was unavailing the accused was allowed to undergo the experiment, which
resulted in his conviction. Not much confidence, however, seems to have
been felt in the trial, as the fine incurred by him was not enforced.901 Of
course, under the influence of English rule, this and all other ordeals are
legally obsolete, but the popular belief in them is not easily eradicated. So
lately as 1867 the Bombay Gazette records a case occurring at Jamnuggur,
when a camel-driver named Chakee Soomar, under whose charge a
considerable sum of money was lost, was exposed by a local official to the
ordeal of boiling oil. The authorities, however, took prompt measures to
punish this act of cruelty. The karb-haree who ordered it escaped

chastisement by opportunely dying, but the owner of the treasure, who had
urged the trial, was condemned to pay to the camel-driver a pension of 100
rupees during life. In 1868 the Madras Times chronicled an attempt to
revive the practice among the Brahmans of Travancore. About thirty years
before it had been abolished by the British authorities, but previous to that
time it was performed by placing a small silver ball in a brazen vessel eight
inches deep, filled with boiling ghee. After various religious ceremonies,
the accused plunged in his hand, and sometimes was obliged to repeat the
attempt several times before he could bring out the ball. The hand was then
wrapped up in tender palm leaves and examined after an interval of three
days. In 1866 some Brahmans in danger of losing caste endeavored to
regain their position by obtaining permission to undergo a modification of
this trial, substituting cold oil for boiling ghee. The authorities made no
objection to this, but the holy society refused to consider it a valid
purgation.
Christian faith improved on the simplicity of pagan devices, and was
able, through the intermediation of men of supreme sanctity, to induce
Heaven to render the ordeal still more miraculous. D’Achery quotes from a
contemporary MS. life of the holy Pons, Abbot of Andaone near Avignon, a
miracle which relates that one morning after mass, as he was about to cross
the Rhone, he met two men quarrelling over a ploughshare, which, after
being lost for several days, had been found buried in the ground, and which
each accused the other of having purloined and hidden. As the question was
impenetrable to human wisdom, Pons intervened and told them to place the
ploughshare in the water of the river, within easy reach. Then, making over
it the sign of the cross, he ordered the disputant who was most suspected to
lift it out of the river. The man accordingly plunged his arm into the stream
only to withdraw it, exclaiming that the water was boiling, and showed his
hand fearfully scalded, thus affording the most satisfactory evidence of his
guilt.902 St. Bertrand, Bishop of Comminges, adopted a similar method in a
case of disputed paternity. A poor woman came to him with a starving
infant, which the father refused to recognize or provide for, lest such
evidence of sin should render him ineligible for an ecclesiastical benefice.
The bishop summoned the offender, who stoutly denied the allegation, until
a vessel of cold water was brought and a stone thrown in, when the bishop
blessed the water, and ordered the father to take out the stone, saying that

the result would show the truth or falsity of his asseverations. Full of
confidence, the man plunged in his hand and brought out the stone, with his
hand scalded as though the water had been boiling. He promptly admitted
his guilt, acknowledged the child, and thenceforth provided for it.903
Similar to this was the incident which drove the holy St. Gengulphus from
the world. While yet a warrior and favorite of King Pepin, during his travels
in Italy he was attracted by a way-side fountain, and bought it from the
owner, who imagined that it could not be removed from his possessions. On
his return to France, Gengulphus drove his staff into the ground near his
house, in a convenient place, and on its being withdrawn next day, the
obedient stream, which had followed him from Italy, burst forth. He soon
learned that during his absence his wife had proved unfaithful to him with a
priest, and desiring to test her innocence, he took her to the fountain and
told her that she could disprove the reports against her by picking up a hair
which lay at the bottom of the pool. She boldly did this, but on withdrawing
her hand it was fearfully scalded, the skin and flesh hanging in strips from
her finger-ends. He pardoned her and retired from the world, but she was
implacable, and took her revenge by inciting her paramour to murder
him.904

CHAPTER III.
THE ORDEAL OF RED-HOT IRON.

In almost all ages there has existed the belief that under the divine
influence the human frame was able to resist the action of fire. Even the
sceptic Pliny seems to share the superstition as to the families of the Hirpi,
who at the annual sacrifice made to Apollo, on Mount Soracte, walked
without injury over piles of burning coals, in recognition of which, by a
perpetual senatus consultum, they were relieved from all public burdens.905
That fire applied either directly or indirectly should be used in the appeal to
God was therefore natural, and the convenience with which it could be
employed by means of iron rendered that the most usual form of the ordeal.
As employed in Europe, under the name of judicium ferri or juise it was
administered in two essentially different forms. The one (vomeres igniti,
examen pedale) consisted in laying on the ground at certain distances six,
nine, or in some cases twelve, red-hot ploughshares, among which the
accused walked barefooted, sometimes blindfolded, when it became an
ordeal of pure chance, and sometimes compelled to press each iron with his
naked feet.906 The other and more usual form obliged the patient to carry in
his hand for a certain distance, usually nine feet, a piece of red-hot iron, the
weight of which was determined by law and varied with the importance of
the question at issue or the magnitude of the alleged crime. Thus, among the
Anglo-Saxons, in the “simple ordeal” the iron weighed one pound, in the
“triple ordeal” three pounds. The latter is prescribed for incendiaries and
“morth-slayers” (secret murderers), for false coining, and for plotting
against the king’s life; while at a later period, in the collection known as the
Laws of Henry I., we find it extended to cases of theft, robbery, arson, and
felonies in general.907 In Sweden, for theft, the form known as trux iarn
was employed, in which the accused had to carry the red-hot iron and
deposit it in a hole twelve paces from the starting-point; in other cases the
ordeal was called scuz iarn, when he carried it nine paces and then cast it
from him. These ordeals were held on Wednesday, after fasting on bread
and water on Monday and Tuesday; the hand or foot was washed, after
which it was allowed to touch nothing till it came in contact with the iron; it
was then wrapped up and sealed until Saturday, when it was opened in

presence of the accuser and the judges.908 In Spain, the iron had no definite
weight, but was a palm and two fingers in length, with four feet, high
enough to enable the criminal to lift it conveniently.909 The episcopal
benediction was necessary to consecrate the iron to its judicial use. A
charter of 1082 shows that the Abbey of Fontanelle in Normandy had one of
approved sanctity, which, through the ignorance of a monk, was applied to
other purposes. The Abbot thereupon asked the Archbishop of Rouen to
consecrate another, and before the latter would consent the institution had to
prove its right to administer the ordeal.910 The wrapping up and sealing of
the hand was a general custom, derived from the East, and usually after
three days it was uncovered and the decision was rendered in accordance
with its condition.911 These proceedings were accompanied by the same
solemn observances which have been already described, the iron itself was
duly exorcised, and the intervention of God was invoked in the name of all
the manifestations of Divine clemency or wrath by the agency of fire—
Shadrach, Meshach, and Abednego, the burning bush of Horeb, the
destruction of Sodom, and the day of judgment.912 Occasionally, when
several criminals were examined together, the same piece of heated iron
was borne by them successively, giving a manifest advantage to the last
one, who had to endure a temperature considerably less than his
companions.913
In India this was one of the earliest forms of the ordeal, in use even in the
Vedic period, as it is referred to in the Khandogya Upanishad of the Sama
Veda, where the head of a hatchet is alluded to as the implement employed
for the trial—subsequently replaced by a ploughshare.914 In the seventh
century, A. D., Hiouen Thsang reports that the red-hot iron was applied to
the tongue of the accused as well as to the palms of his hands and the soles
of his feet, his innocence being designated by the amount of resultant
injury.915 This may have been a local custom, for, according to Institutes of
Vishnu, closely followed by Yajnavalkya, the patient bathes and performs
certain religious ceremonies; then after rubbing his hands with rice bran,
seven green asvattha leaves are placed on the extended palms and bound
with a thread. A red-hot iron ball or spear-head, weighing about two pounds
and three-quarters, is then brought, and the judge adjures it—

“Thou, O fire, dwellest in the interior of all things like a witness. O
fire, thou knowest what mortals do not comprehend.
“This man being arraigned in a cause desires to be cleared from
guilt. Therefore mayest thou deliver him lawfully from this
perplexity.”

The glowing ball is then placed on the hands of the accused, and with it
he has to walk across seven concentric circles of cow-dung, each with a
radius sixteen fingers’ breadth larger than the preceding, and throw the ball
into a ninth circle, where it must burn some grass placed there for the
purpose. If this be accomplished without burning the hands, he gains his
cause, but the slightest injury convicts him. A minimum limit of a thousand
pieces of silver was established at an early period as requisite to justify the
administration of this form of ordeal in a suit.916 But the robust faith in the
power of innocence characteristic of the earlier Hindus seems to have
diminished, for subsequent recensions of the code and later lawgivers
increase the protection afforded to the hand by adding to the asvattha leaves
additional strata of dharba grass and barley moistened with curds, the whole
bound around with seven turns of raw silk.917 Ali Ibrahim Khan relates a
case which he witnessed at Benares in 1783 in which a man named Sancar,
accused of larceny, offered to be tried in this manner. The court deliberated
for four months, urging the parties to adopt some other mode, but they were
obstinate, and being both Hindus claimed their right to the ancient forms of
law, which was at last conceded. The ordeal took place in presence of a
large assemblage, when, to the surprise of every one, Sancar carried the red-
hot ball through the seven circles, threw it duly into the ninth where it burnt
the grass, and exhibited his hands uninjured. By way of discouraging such
experiments for the future, the accuser was imprisoned for a week.918 Even
in 1873, the Bombay Gazette states that this ordeal is still practised in
Oodeypur, where a case had shortly before occurred wherein a husbandman
had been obliged to prove his innocence by holding a red-hot ploughshare
in his hands, duly guarded with peepul leaves, turning his face towards the
sun and invoking it: “Thou Sun-God, if I am actually guilty of the crime,
punish me; if not, let me escape unscathed from the ordeal!”—and in this
instance, also, the accused was uninjured.

A peculiar modification of the hot-iron ordeal is employed by the
aboriginal hill-tribes of Rajmahal, in the north of Bengal, when a person
believes himself to be suffering from witchcraft. The Satane and the
Cherreen are used to find out the witch, and then the decision is confirmed
by a person representing the sufferer, who, with certain religious
ceremonies, applies his tongue to a red-hot iron nine times, unless sooner
burnt. A burn is considered to render the guilt of the accused indubitable,
and his only appeal is to have the trial repeated in public, when, if the same
result follows, he is bound either to cure the bewitched person or to suffer
death if the latter dies.919
In the earlier periods of European law, the burning iron was reserved for
cases of peculiar atrocity. Thus we find it prescribed by Charlemagne in
accusations of parricide;920 the Council of Risbach in 799 directed its use in
cases of sorcery and witchcraft;921 and among the Thuringians it was
ordered for women suspected of poisoning or otherwise murdering their
husbands922—a crime visited with peculiar severity in almost all codes. In
848 the Council of Mainz indicates it specially for slaves,923 while the
Council of Tribur, in 895, orders it for all cases of accusation against
freemen.924 Among the Anglo-Saxons the accuser had the right to select the
ordeal to be employed,925 while at a later period in Germany this privilege
was conferred on the accused.926 In England it subsequently became rather
an aristocratic procedure as contradistinguished from the water ordeals.927
On the other hand, in the Assises de Jerusalem the hot iron is the only form
alluded to as employed in the roturier courts;928 in the laws of Nieuport,
granted by Philip of Alsace in 1163, it is prescribed as a plebeian ordeal;929
and about the same period, in the military laws enacted by Frederic
Barbarossa during his second Italian expedition, it appears as a servile
ordeal.930 In the Russian law of the eleventh century, it is ordered in all
cases where the matter at stake amounts to more than half a grivna of gold,
while the water ordeal is reserved for suits of less importance.931 In the
Icelandic code of the twelfth century it is prescribed for men, in cases in
which women are required to undergo the hot-water ordeal;932 while the
reverse of this is seen in an English case occurring in 1201, where six men
and a woman were accused of burglary; the men were ordered to the water
ordeal and the woman to red-hot iron.933 A specially severe form was

provided for women in Ireland, who, when accused, were obliged to lick
with the tongue a bronze axe-head heated to redness in a fire of black-
thorn.934
Irrespective of these distinctions, we find it to have been the mode
usually selected by persons of rank when compelled to throw themselves
upon the judgment of God. The Empress Richardis, wife of Charles le Gros,
accused in 887 of adultery with Bishop Liutward, offered to prove her
innocence either by the judicial combat or the red-hot iron.935 So when the
Emperor St. Henry II. indulged in unworthy doubts of the purity of his
virgin-wife St. Cunigunda, she eagerly appealed to the judgment of God,
and established her innocence by treading unharmed the burning
ploughshares.936 The tragical tradition of Mary, wife of the Third Otho,
contains a similar example, with the somewhat unusual variation of an
accuser undergoing an ordeal to prove a charge. The empress, hurried away
by a sudden and unconquerable passion for Amula, Count of Modena, in
996, repeated in all its details the story of Potiphar’s wife. The unhappy
count, unceremoniously condemned to lose his head, asserted his innocence
to his wife, and entreated her to clear his reputation. He was executed, and
the countess, seeking an audience of the emperor, disproved the calumny by
carrying unharmed the red-hot iron, when Otho, convinced of his rashness
by this triumphant vindication, immediately repaired his injustice by
consigning his empress to the stake.937 When Edward the Confessor, who
entertained a not unreasonable dislike for his mother Emma, listened
eagerly to the accusation of her criminal intimacy with Alwyn, Bishop of
Winchester, she was condemned to undergo the ordeal of the burning
shares, and, walking over them barefooted and unharmed, she established
beyond peradventure the falsehood of the charge.938 So when in 943 Arnoul
of Flanders had procured the assassination of William Longsword, Duke of
Normandy, at Pecquigny, he offered to Louis d’Outremer to clear himself of
complicity in the murder by the ordeal of fire.939 Robert Curthose, son of
William the Conqueror, while in exile during his youthful rebellion against
his father, formed an intimacy with a pretty girl. Years afterwards, when he
was Duke of Normandy, she presented herself before him with two likely
youths, whom she asserted to be pledges of his former affection. Robert was
incredulous; but the mother, carrying unhurt the red-hot iron, forced him to
forego his doubts and to acknowledge the paternity of the boys, whom he

thenceforth adopted.940 Indeed this was the legal form of proof in cases of
disputed paternity established by the Scandinavian legislation at this
period,941 and in that of Spain a century later.942 Remy, Bishop of
Dorchester, when accused of treason against William the Conqueror, was
cleared by the devotion of a follower, who underwent the ordeal of hot
iron.943 When, in 1098, William Rufus desired to supply his treasury by
confiscations, he accused about fifty of his richest Saxon subjects of having
killed deer in his forests and hurried them to the hot-iron ordeal, but he was
stupefied when after the third day their hands were found to be unhurt.944 In
1143, Henry I., Archbishop of Mainz, ordered its employment, and
administered it himself, in a controversy between the Abbey of Gerode and
the Counts of Hirschberg. In the special charter issued to the abbey attesting
the decision of the trial, it is recorded that the hand of the ecclesiastical
champion was not only uninjured by the fiery metal, but was positively
benefited by it.945 About the same period, Centulla IV. of Béarn caused it to
be employed in a dispute with the Bishop of Lescar concerning the fine paid
for the murder of a priest, the ecclesiastic, as usual, being victorious.946 The
reward of the church for its faith in adopting these pagan customs was seen
in the well-known case by which Bishop Poppo of Slesvick, in 962,
succeeded in convincing and converting the Pagan Danes even as, three
thousand years earlier, according to the Persian historians, Zoroaster
convinced King Gushtashp of the truth of his revelation from Hormazd,947
and, within seven centuries, Adurabad converted the heretical Mazdeans.
The worthy missionary, dining with King Harold Blaatand, denounced, with
more zeal than discretion, the indigenous deities as lying devils. The king
dared him to prove his faith in his God, and, on his assenting, caused next
morning an immense piece of iron to be duly heated, which the undaunted
Poppo grasped and carried around to the satisfaction of the royal court,
displaying his hand unscathed by the glowing mass; or, as a variant of the
legend asserts, he drew on an iron gauntlet reaching to the elbow and heated
to redness. The miracle was sufficient, and Denmark thenceforth becomes
an integral portion of Christendom.948 Somewhat similar, except in its
results, was a case in which a priest involved in a theological dispute with a
Jew, and unable to overcome him in argument, offered to prove the divinity
of Christ by carrying a burning brand in his naked hand. Invoking the name
of Jesus, the faithful ecclesiastic drew the blazing wood from the fire and

slowly carried it for a considerable distance, but though he triumphantly
exhibited his hand unhurt, his obdurate antagonist refused to be converted,
alleging that the miracle was the result of magic.949 In Norway, the sanctity
of St. Olaf the King was attested in the same way, when he thoughtlessly
whittled a twig on Sunday, and his attention was respectfully called by one
of his courtiers to this violation of the sabbatical rules. By way of penance
he collected the chips, placed them on the palm of one hand, and set fire to
them, but after they had been reduced to ashes, to the surprise of the
bystanders, his hand was found unharmed.950
In fact, there was scarcely a limit to the credulity which looked for the
constant interference of the divine power. About 1215 some heretics at
Cambrai were convicted by the hot iron and sentenced to the stake. One of
them was of noble birth, and on the way to the place of execution the priest
who had conducted the proceedings exhorted him to repentance and
conversion. The condemned man listened willingly, and commenced to
confess his errors. As he proceeded his hand commenced to heal, and when
he had received absolution there remained no trace of the burn. When he
was called in turn to take his place at the stake, the priest interposed, saying
that he was innocent, and, on examination of the hand, he was released.
About the same time a similar occurrence is recorded at Strassburg, where
ten heretics had been thus convicted and condemned to be burnt, and one
repenting at the last moment was cured of his burn, and was discharged. In
this case, however, on his return to his house near the town, his wife
upbraided him for his weakness in betraying the eternal truth to avoid a
momentary suffering, and under her influence he relapsed. Immediately the
burn on his hand reappeared, and a similar one took possession of his wife’s
hand, scorching both to the bone and inflicting such excruciating agony that
being unable to repress their screams, and fearing to betray themselves, they
took to the woods, where they howled like wolves. Concealment was
impossible, however. They were discovered, carried to the city, where the
ashes of their accomplices were not yet cold, and both promptly shared the
same fate.951 Somewhat similar is a case recorded in York, where a woman
accused of homicide was exposed to the ordeal, resulting in a blister the
size of a half walnut. She was accordingly convicted by a jury of knights,
but on her offering a prayer at the tomb of St. William of York the blister

disappeared. Thereupon the royal justiciaries dismissed her as innocent, and
declared the jury to be at the king’s mercy for rendering a false verdict.952
No form of ordeal was more thoroughly introduced throughout the whole
extent of Europe. From Spain to Constantinople, and from Scandinavia to
Naples, it was appealed to with confidence as an unfailing mode of
ascertaining the will of Heaven. The term judicium, indeed, was at length
understood to mean an ordeal, and generally that of hot iron, and in its
barbarized form, juise, may almost always be considered to indicate this
particular kind. In the Swedish law of the early 13th century, the red-hot
iron was used in a large number of crimes, and the ferocity of its
employment is exemplified in the formula prescribed for homicide. A
person accused of murder on suspicion was always obliged to justify
himself by carrying the hot iron for nine steps; and if he did not appear to
stand his trial when duly summoned, he might be forced to undergo a
preliminary ordeal to prove that he had been unavoidably detained. If he
failed in this, he was condemned as guilty, but if he succeeded in enduring
it he was forced to perform the second ordeal to clear him of the crime
itself; while the heir of the murdered man, so long as no one succumbed in
the trial, could successively accuse ten men; for the last of whom, however,
the nine burning ploughshares were substituted.953 In the code of the
Frankish kingdoms of the East, it is the only mode alluded to, except the
duel, and it there retained its legal authority long after it had become
obsolete elsewhere. The Assises de Jerusalem were in force in the Venetian
colonies until the sixteenth century, and the manuscript preserved officially
in the archives of Venice, described by Morelli as written in 1436, retains
the primitive directions for the employment of the juise.954 Even the
Venetian translation, commenced in 1531, and finished in 1536, is equally
scrupulous, although an act of the Council of Ten, April 10, 1535, shows
that these customs had fallen into desuetude and had been formally
abolished.955 In Hungary, the judicial records of Waradin from 1209 to
1235 contain 389 judgments, of which a large part were determined by the
hot-iron ordeal.956
This ordeal even became partially naturalized among the Greeks,
probably as a result of the Latin domination at Constantinople. In the
middle of the thirteenth century, the Emperor Theodore Lascaris demanded

that Michael Paleologus, who afterwards wore the imperial crown, should
clear himself of an accusation in this manner; but the Archbishop of
Philadelphia, on being appealed to, pronounced that it was a custom of the
barbarians, condemned by the canons, and not to be employed except by the
special order of the emperor.957 Yet George Pachymere speaks of the
custom as one not uncommon in his youth, and he describes at some length
the ceremonies with which it was performed.958
In Europe, even as late as 1310, in the proceedings against the Order of
the Templars, at Mainz, Count Frederic, the master preceptor of the Rhenish
provinces, offered to substantiate his denial of the accusations by carrying
the red-hot iron.959 In Modena in 1329, in a dispute between the German
soldiers of Louis of Bavaria and the citizens, the Germans offered to settle
the question by carrying a red-hot bar; but when the townsfolks themselves
accomplished the feat, and triumphantly showed that no burn had been
inflicted, the Germans denied the proof, and asserted that magic had been
employed.960
Though about this time it may be considered to have disappeared from
the ordinary proceedings of the secular courts, there was one class of cases
in which its vitality still continued for a century and a half. The mysterious
crime of witchcraft was so difficult of proof that judicial ingenuity was
taxed to its utmost to secure conviction, and the Devil was always ready to
aid his followers and baffle the ends of justice. The Inquisitor Sprenger,
writing in 1487, therefore recommends that, when a witch cannot be forced
to confess her guilt by either prayers or torture, she shall be asked whether
she will undergo the ordeal of red-hot iron; to this she will eagerly assent,
knowing that she can rely on the friendly assistance of Satan to carry her
through it unscathed, and this readiness will be good evidence of her guilt.
He warns inexperienced judges moreover not to allow the trial to take place,
and thus afford to Satan the opportunity of triumph, and instances a case
which occurred in 1484 before the Count of Furstenberg. A well-known
witch was arrested and tried, but no confession could be extorted from her
by all the refinements of torture. Finally she offered to prove her innocence
with the red-hot iron, and the Count being young and unwary accepted the
proposal, sentencing her to carry it three paces. She carried it for six paces
and offered to hold it still longer, exhibiting her hand uninjured. The Count

was forced to acquit her, and at the time that Sprenger wrote she was still
living, to the scandal of the faithful.961
After the judicial use of the red-hot iron had at last died out, the
superstition on which it was based still lingered, and men believed that God
would reverse the laws of nature to accomplish a special object. About 1670
Georg Frese, a merchant of Hamburg, distinguished for piety and probity,
published an account, the truth of which was vouched for by many
respectable eye-witnesses, stating that a friend of his named Witzendorff,
who had bound himself to a young woman by terrible oaths, and then had
proved false and caused her death, fell into a despairing melancholy. He
accused himself of the sin against the Holy Ghost, declared that his
salvation was impossible, and refused to hope unless he could see a miracle
wrought in his behalf. Frese at length asked him what miracle he required,
and on his replying that he must see that fire would not burn, the intrepid
consoler went to a blazing fire, picked out the burning coals and also a red-
hot ring, which he brought to the sinner with uninjured hands and
convinced him that he could be saved by repentance. The moral drawn from
the facts by the narrator to whom we owe them, is that he who under Divine
influence undertakes such ordeals will be preserved unharmed.962
Even as we have seen that Heaven sometimes interposed to punish the
guilty by a reversal of the hot-water ordeal, so the industrious belief of the
Middle Ages found similar miracles in the hot-iron trial, especially when
Satan or some other mysterious influence nullified the appeal to God. Early
in the thirteenth century a case is related in which a peasant to revenge
himself on a neighbor employed a vagabond monk to burn the house of the
latter. The hot-iron ordeal was vainly employed on all suspected of the
crime; the house was rebuilt, the monk again bribed, burnt it a second time,
and again the ordeal proved vain. The owner again rebuilt his house, and
kept in it the ordeal-iron, ready for use. The monk, tempted with fresh
promises, paid him another visit, and was hospitably received as before,
when seeing the piece of iron, his curiosity was aroused and he asked what
it was. The host handed it to him, explaining its use, but as soon as the
wretch took it, it burned him to the bone, when the other seeing in him the
incendiary, seized him; he was duly tried, confessed his guilt, and was
broken on the wheel.963 A variant of this story relates how a man accused of

arson offered to prove his innocence by the red-hot iron, which he carried
for a long distance and then showed his hand uninjured. The ordeal-iron
mysteriously vanished and could not be found, until a year afterwards,
when a laborer who was mending the highway came upon it under a layer
of sand. It was still glowing fiercely, and when he attempted to pick it up, it
burnt him severely. The bystanders at once suspected him of the crime, and
on the appropriate means being taken he was forced to confess his guilt,
which was duly punished by the wheel.964 A less tragical example of the
same form of miracle was that wrought by the holy Suidger, Bishop of
Munster, who suspected his chamberlain of the theft of a cup. As the man
stoutly denied his guilt, Suidger ordered him to pick up a knife from the
table, after he had mentally exorcised it. The cold metal burnt the culprit’s
hand as though it had been red-hot, and he promptly confessed his crime.965

CHAPTER IV.
THE ORDEAL OF FIRE.

The ordeal of fire, administered directly, without the intervention either
of water or of iron, is one of the most ancient forms, as is shown by the
allusions to it in both the Hindu Vedic writings, the adventure of Siawush,
and the passage in the Antigone of Sophocles (pp. 266, 267, 270). In this, its
simplest form, it may be considered the origin of the proverbial expression,
“J’en mettrois la main au feu,” as an affirmation of positive belief,966
showing how thoroughly the whole system engrained itself in the popular
mind. In India, as practised in modern times, its form approaches somewhat
the ordeal of the burning ploughshares. A trench is dug nine hands in length,
two spans in breadth, and one span in depth. This is filled with peepul
wood, which is then set on fire, and the accused walks into it with bare
feet.967 A more humane modification is described in the seventh century by
Hiouen-Thsang as in use when the accused was too tender to undergo the
trial by red-hot iron. He simply cast into the flames certain flower-buds,
when, if they opened their leaves, he was acquitted; if they were burnt up,
he was condemned.968
An anticipation of the fire ordeal may be found in the Rabbinical story of
Abraham when he was cast into a fiery furnace by Nimrod, for reproving
the idolatry of the latter, and escaped unharmed from the flames;969 as well
as the similar experience of Shadrach, Mesach, and Abednego, when they
were saved from the wrath of Nebuchadnezzar.970 Miraculous interposition
of this kind was expected as a matter of course by the early Christians.
About the year 400 Rufinus, in his account of his visit to the monks of the
Nitrian desert, tells an adventure of the hermit Copres as related to him by
that holy man himself. On visiting a neighboring city he engaged in a
disputation with a Manichæan who was perverting the people. Finding the
heretic not easily overcome by argument, he proposed that a fire should be
built in the public square, into which both should enter. The populace was
delighted with the idea and speedily had a roaring pyre ready, when the
Manichæan insisted that the Christian should enter first. Copres assented
and remained unhurt in the flames for half an hour; his antagonist still held
back, when the crowd seized him and tossed him into the fire, where he was

severely scorched, and was ejected with disgrace from the city.971 Almost
identical is the story related in 597 A. D., under the Emperor Anastasius, of
a Catholic bishop, who, after being worsted in a theological dispute by the
subtle logic of an Arian, offered to test the soundness of their respective
doctrines by together entering a blazing fire. The prudent Arian declined the
proposition, when the enthusiastic Catholic jumped into the burning pile,
and thence continued the controversy without suffering the least
inconvenience.972 In the less impressive form of filling the lap with burning
coals and carrying them uninjured till they grew cold this ordeal seems to
have been a favorite with holy men accused of unchastity. It is related of St.
Brice, the successor of St. Martin in the see of Tours, of St. Simplicius of
Autun, and of Montano bishop of Toledo in the sixth century.973
The earliest legal allusion to this form of ordeal in Europe occurs in the
code of the Ripuarian Franks, where it is prescribed as applicable to slaves
and strangers, in some cases of doubt.974 From the phraseology of these
passages, we may conclude that it was then administered by placing the
hand of the accused in a fire. As a legal ordeal this is perhaps the only
allusion to it in European jurisprudence, but it was repeatedly resorted to by
enthusiasts as a voluntary trial for the purpose of establishing the truth of
accusations or of substantiating their position. In these cases it was
conducted on a larger and more impressive scale; huge pyres were built,
and the individual undergoing the trial literally walked through the flames,
as Siawush did. The celebrated Petrus Igneus gained his surname and
reputation by an exploit of this kind, which was renowned in its day. Pietro
di Pavia, Bishop of Florence, unpopular with the citizens, but protected by
Godfrey, Duke of Tuscany, was accused of simony and heresy. Being
acquitted by the Council of Rome, in 1063, and the offer of his accusers to
prove his guilt by the ordeal of fire being refused, he endeavored to put
down his adversaries by tyranny and oppression. Great disturbances
resulted, and at length, in 1067, the monks of Vallombrosa, who had borne a
leading part in denouncing the bishop, and who had suffered severely in
consequence (the episcopal troops having burned the monastery of St.
Salvio and slaughtered the cenobites), resolved to decide the question by
the ordeal, incited thereto by no less than three thousand enthusiastic
Florentines who assembled there for the purpose. Pietro Aldobrandini, a
monk of Vallombrosa, urged by his superior, the holy S. Giovanni

Gualberto, offered himself to undergo the trial. After imposing religious
ceremonies, he walked slowly between two piles of blazing wood, ten feet
long, five feet wide, and four and a half feet high, the passage between them
being six feet wide and covered with an inch or two of glowing coals. The
violence of the flames agitated his dress and hair, but he emerged without
hurt, even the hair on his legs being unsinged, barelegged and barefooted
though he was. Desiring to return through the pyre, he was prevented by the
admiring crowd, who rushed around him in triumph, kissing his feet and
garments, and endangering his life in their transports, until he was rescued
by his fellow monks. A formal statement of the facts was sent to Rome by
the Florentines, the papal court gave way, and the bishop was deposed;
while the monk who had given so striking a proof of his steadfast faith was
marked for promotion, and eventually died Cardinal of Albano.975
An example of a similar nature occurred in Milan in 1103, when the
Archbishop Grossolano was accused of simony by a priest named
Liutprand, who, having no proof to sustain his charge, offered the ordeal of
fire. All the money he could raise he expended in procuring fuel, and when
all was ready the partisans of the archbishop attacked the preparations and
carried off the wood. The populace, deprived of the promised exhibition,
grew turbulent, and Grossolano was obliged not only to assent to the trial,
but to join the authorities in providing the necessary materials. In the Piazza
di S. Ambrogio two piles were accordingly built, each ten cubits long, by
four cubits in height and width, with a gangway between them of a cubit
and a half. As the undaunted priest entered the blazing mass, the flames
divided before him and closed as he passed, allowing him to emerge in
safety, although with two slight injuries, one a burn on the hand, received
while sprinkling the fire before entering, the other on the foot, which he
attributed to a kick from a horse in the crowd that awaited his exit. The
evidence was accepted as conclusive by the people, and Grossolano was
obliged to retire to Rome. Pascal II., however, received him graciously, and
the Milanese suffragans disapproved of the summary conviction of their
metropolitan, to which they were probably all equally liable. The injuries
received by Liutprand were exaggerated, a tumult was excited in Milan, the
priest was obliged to seek safety in flight, and Grossolano was restored for
a time, but the adverse party prevailed and in spite of papal support he was
forced to exile.976

A volunteer miracle of somewhat the same character, which is recorded
as occurring in Paris early in the thirteenth century, may be alluded to as
illustrating the belief of the period. A loose woman in the household of a
great noble was luring the youthful retainers to sin, when the chaplain
remonstrated with his master, and threatened to depart unless she was
removed. When she was taxed with her guilt she defended herself by saying
that the priest had accused her because she had refused his importunities,
and offered to prove it. Approaching him as a penitent, she sought to seduce
his virtue, finally threatening to kill herself unless he would gratify her
despairing love, until, to prevent her suicide, he finally made an
appointment with her. Secretly announcing her triumph to the noble, she
went to the place of meeting, where she found the chaplain mounted on a
bed of plank, surrounded by straw and dry wood, to which he set fire on her
appearance, and invited her to join him. Covered by the flames, the sinless
man felt nothing but a cool, refreshing breeze, and when the pile had burnt
out, he emerged unhurt, even his garments and hair being untouched.977
But the experiment was not always so successful for the rash enthusiast.
In 1098, during the first crusade, after the capture of Antioch, when the
Christians were in turn besieged in that city, and, sorely pressed and
famine-struck, were well-nigh reduced to despair, an ignorant peasant
named Peter Bartholomew, a follower of Raymond of Toulouse, announced
a series of visions in which St. Andrew and the Saviour had revealed to him
that the lance which pierced the side of Christ lay hidden in the church of
St. Peter. After several men had dug in the spot indicated, from morning
until night, without success, Peter leaped into the trench, and by a few well-
directed strokes of his mattock exhumed the priceless relic, which he
presented to Count Raymond. Cheered by this, and by various other
manifestations of Divine assistance, the Christians gained heart, and
defeated the Infidels with immense slaughter. Peter became a man of mark,
and had fresh visions on all important conjunctures. Amid the jealousies
and dissensions which raged among the Frankish chiefs, the possession of
the holy lance vastly increased Raymond’s importance, and rival princes
were found to assert that it was merely a rusty Arab weapon, hidden for the
occasion, and wholly undeserving the veneration of which it was the object.
At length, after some months, during the leisure of the siege of Archas, the
principal ecclesiastics in the camp investigated the matter, and Peter, to

silence the doubts expressed as to his veracity, offered to vindicate the
identity of the relic by the fiery ordeal. He was taken at his word, and after
three days allowed for fasting and prayer, a pile of dry olive-branches was
made, fourteen feet long and four feet high, with a passage-way one foot
wide. In the presence of forty thousand men all eagerly awaiting the result,
Peter, bearing the object in dispute, and clothed only in a tunic, boldly
rushed through the flames, amid the anxious prayers and adjurations of the
multitude. As the chroniclers lean to the side of the Neapolitan Princes or of
the Count of Toulouse, so do their accounts of the event differ; the former
asserting that Peter sustained mortal injury in the fire; the latter assuring us
that he emerged safely, with but one or two slight burns, and that the crowd
enthusiastically pressing around him in triumph, he was thrown down,
trampled on, and injured so severely that he died in a few days, asseverating
with his latest breath the truth of his revelations. Raymond persisted in
upholding the sanctity of his relic, but it was subsequently lost.978
Even after the efforts of Innocent III. to abolish the ordeal, and while the
canons of the Council of Lateran were still fresh, St. Francis of Assisi, in
1219, offered himself to the flames for the propagation of the faith. In his
missionary trip to the East, finding the Soldan deaf to his proselyting
eloquence, he proposed to test the truth of their respective religions by
entering a blazing pile in company with some imams, who naturally
declined the perilous experiment. Nothing daunted, the enthusiastic saint
then said that he would traverse the flames alone if the Soldan would bind
himself, in the event of a triumphant result, to embrace the Christian
religion and to force his subjects to follow the example. The Turk, more
wary than the Dane whom Poppo converted, declined the proposition, and
St. Francis returned from his useless voyage unharmed.979
In this St. Francis endeavored unsuccessfully to emulate the glorious
achievement of Boniface, the Apostle of Russia, who, according to the
current martyrologies, converted the King of Russia to the true faith by
means of such a bargain and ordeal.980 It is a little curious that Peter Cantor,
in his diatribe against the judgment of God, presents the supposition of a
trial such as this as an unanswerable argument against the system—the
Church, he says, could not assent to such an experiment, and therefore it
ought not to be trusted in affairs of less magnitude.981

Somewhat irregular as a judicial proceeding, but yet illustrating the
general belief in the principles of the ordeal of fire, was an occurrence
related about the year 1220 by Cæsarius of Heisterbach as having taken
place a few years before in Arras. An ecclesiastic of good repute decoyed a
goldsmith into his house, and murdered him to obtain possession of some
valuables, cutting up the body, with the assistance of a younger sister, and
hiding the members in a drain. The crime was proved upon them, and both
were condemned to the stake. On the way to the place of punishment, the
girl demanded a confessor, and confessed her sins with full contrition, but
the brother was obdurate and impenitent. Both were tied to the same stake;
the brother was promptly reduced to ashes, while the flames were
deliciously cool to the sister, and only burnt the rope with which she was
tied, so that she quietly walked down from the pile. The judges, thus
convinced of her innocence, dismissed her without further trouble.982
From every point of view, however, both as to date and as to
consequences, the most remarkable recourse to the fire ordeal was that
which proved to be the proximate cause of the downfall of Savonarola.
Long after the ordeal system had been superseded in European
jurisprudence, and occurring in the centre of the New Learning, it was a
most noteworthy illustration of the superstition which formed a common
bond between sceptics and religious enthusiasts. In 1498 Savonarola had
been silenced by command of Alexander III., his influence with the people
was waning, and his faithful follower Fra Domenico da Pescia was
desperately struggling in the pulpit to maintain the cause against the
assaults of the Franciscans led by the eloquent Fra Francesco della Puglia.
Domenico in a sermon offered to prove the truth of his leader’s utterances
by throwing himself from the roof of the Palazzo de’ Signori, by casting
himself in the river, or by entering fire. This burst of rhetoric might have
passed unheeded had not Fra Francesco taken it up and offered to share the
ordeal with Savonarola himself. Savonarola declined, except under
impossible conditions, but Domenico accepted the challenge and affixed to
the portal of Santa Croce a paper in which he offered to prove by argument
or miracle the truth of sundry propositions bearing upon his teacher’s
mission. To this Fra Francesco replied that he would enter fire with Fra
Domenico; that he fully expected to be burnt, but that he would willingly
suffer if he could disabuse the people of their false idol. Popular excitement

rose to such a height that the Signoria sent for both disputants, and made
them sign a written agreement to undergo the ordeal. In this Fra Francesco
wisely provided that, although he was willing to enter fire with Savonarola
himself, if Domenico was to act he would only produce a champion, who
was readily found in the person of Fra Giuliano Rondinelli. On the side of
the Dominicans the enthusiasm was so great that all the friars of
Savonarola’s convent of San Marco, nearly three hundred in number,
eagerly signed a pledge to submit to the ordeal, and he assured them that in
such a cause they could do so without danger. In fact, when, on the day
before the trial, he preached on the subject in San Marco, the whole
audience rose as one man and offered to take Domenico’s place.
April 7th was the day fixed for the Sperimento del Fuoco. In the Piazza
de’ Signori a huge pile of wood, plentifully reinforced with gunpowder,
sulphur, oil, and spirits, was built with a gangway through which the
champions were to pass; it was to be lighted at one end, and after they
entered fire was to be set at the other to preclude retreat. All Florence
assembled to witness the spectacle, and patiently endured the peltings of a
terrible storm. The day was spent, however, in wrangling over questions
skilfully raised by the Franciscans, the chief one being whether Fra
Domenico should carry in his hand a consecrated host. It had been revealed
to one of his brethren that this was indispensable, and Savonarola adhered
to it firmly. When evening came the Signoria announced that the ordeal was
abandoned. The crowd was enraged at the loss of the promised exhibition;
the Dominicans had so confidently promised a miracle that the drawn battle
was universally regarded as their defeat, an armed guard was required to
protect their return to their convent, and Savonarola’s power over the
Florentine populace was gone. His enemies lost no time in pushing their
advantage. The next evening the mob assailed San Marco; he was seized
and conveyed to prison, and after prolonged and repeated tortures he was
hanged and burnt on May 23d.983
It will be observed that the ordeal of fire was principally affected by
ecclesiastics in church affairs, perhaps because it was of a nature to produce
a powerful impression on the spectators, while at the same time it could no
doubt in many instances be so managed as to secure the desired results by
those who controlled the details. In like manner, it was occasionally
employed on inanimate matter to decide points of faith or polity. Thus, in

the question which excited great commotion in Spain, in 1077, as to the
substitution of the Roman for the Gothic or Mozarabic rite, after a judicial
combat had been fought and determined in favor of the national ritual, the
partisans of the Roman offices continued to urge their cause, and the ordeal
of fire was appealed to. A missal of each kind was committed to the flames,
and, to the great joy of all patriotic Castilians, the Gothic offices were
unconsumed.984 More satisfactory to the orthodox was the result of a
similar ordeal during the efforts of St. Dominic to convert the Albigenses.
In a dispute with some heretics he wrote out his argument on the points of
faith, and gave it to them for examination and reply. That night, as they
were seated around the hearth, the paper was produced and read, when one
of them proposed that it should be cast into the flames, when, if it remained
unconsumed, they would see that its contents were true. This was promptly
done, when the saintly document was unharmed. One, more obstinate than
the rest, asked for a second and then for a third trial, with the same result.
The perverse heretics, however, closed their hearts against the truth, and
bound themselves by oath to keep the affair secret; and so glorious a victory
for the true faith would have remained unknown but for the indiscretion of
one of them, a knight, who had a covert inclination towards orthodoxy.985 A
somewhat similar instance occurred in Constantinople as late as the close of
the thirteenth century, when Andronicus II., on his accession, found the city
torn into factions relative to the patriarchate, arising from the expulsion of
Arsenius, a former patriarch. All attempts to soothe the dissensions proving
vain, at length both parties agreed to write out their respective statements
and arguments, and, committing both books to the flames, to abide by the
result, each side hoping that its manuscript would be preserved by the
special interposition of Heaven. The ceremony was conducted with
imposing state, and, to the general surprise, both books were reduced to
ashes. Singularly enough, all parties united in the sensible conclusion that
God had thereby commanded them to forget their differences and to live in
peace.986
About the same period as this last example, Samaritan tradition related
that the comparative claims of Mt. Gerizim and Al-Qods (Jerusalem) as the
sole seats of Yahveh-worship were settled before Nebuchadnezzar, by the
ordeal of fire, applied respectively to the Pentateuch and to the later books
of the Jewish canon, Sanballat appearing for Ephraim, and Zerubbabel for

Judah. The later books were promptly consumed, but the law of Moses
emerged twice from the flames unhurt. Zerubbabel, in despair, then spat
upon some pages of the index, and cast the Law a third time into the fire,
when the leaves thus polluted were burnt, but the book itself leaped
unscathed into the bosom of the king, who promptly slew the
representatives of Judah, and gave an unhesitating verdict in favor of the
Samaritans.987
The genuineness of relics was often tested in this manner by exposing
them to the action of fire. This custom, like the ordeal itself as a judicial
process, finds its original home in the East. When, for instance, the sacred
tooth-relic of Buddha was carried to the court of King Pandu at Patali-putta,
and its holiness was questioned by the Niganthas, or worshippers of Siva,
they tested it by casting it into a pit filled with glowing charcoal “bright and
horrid as the hell Roruva”—when the tooth, in place of being consumed to
ashes, rose out of the fiery mass resting on a lotus the size of a chariot-
wheel.988 Even Roman unbelief accepted a similar faith respecting the
superfluous thumb which ornamented the right foot of King Pyrrhus, the
touch of which cured diseases of the spleen, and which remained unharmed
on the funeral pyre which consumed the rest of his body to ashes. The
indestructible supplementary member was thereupon inclosed in a casket,
and reverently placed in a temple—the first relic, probably, on record in the
western world.989 At how early an age Christianity adopted the belief which
led to this is manifested by the story of the swaddling-cloth of Christ in one
of the apocryphal Gospels. The Virgin, being unable, on account of poverty,
to make a return for the offerings of the Magi who came to worship the
infant Saviour, presented them with one of his swaddling-bands. On their
return they placed it in the sacred fire of their altar, and though the flames
eagerly embraced it, they left it unharmed and unaltered, whereupon the
Magi venerated it, and laid it away among their treasures.990 On the
conversion of the Spanish Arians the experiment was tried on a larger scale.
It seems that doubts were felt by the orthodox as to the relics preserved in
their churches, and a general regulation was adopted by the Council of
Saragossa in 592 that they should be all brought before the bishops and
tested by fire—with what result is not recorded.991

In such cases the ceremony of the ordeal was conducted with appropriate
religious services, including the following prayer, which would seem to
show that in its regular form it was not the relic itself, but the cloth in which
it was wrapped that was exposed to the test—

Lord Jesus Christ, who art king of kings and lord of lords, and lover
of all believers in thee, who art a just judge, strong and powerful, who
hast revealed thy holy mysteries to thy priests, and who didst mitigate
the flames to the Three Children; concede to us thy unworthy servants
and grant our prayers that this cloth or this thread in which are
wrapped those bodies of saints, if they are not genuine let them be
burned by this fire, and if they are genuine let them escape, so that
iniquity shall not prevail over injustice but falsehood shall succumb to
truth, so that thy truth shall be declared to thee and be manifested to
us, believers in thee, that we may know thee to be the blessed God in
ages everlasting. Amen.992

Numerous instances of this superiority of relics to fire are narrated by the
pious chroniclers of the middle ages. In 1015 some monastic pilgrims,
hospitably received at Monte Cassino on their return from Jerusalem,
offered at the shrine of St. Benedict a fragment of the towel with which the
Saviour had washed the feet of his disciples. Some of the monks, being
incredulous, placed it on burning coals, when it turned fiery red, but, on
being removed, returned to its original color, and all doubts as to its
authenticity were dispelled.993 When, in 1065, the pious Egelwin, Bishop of
Durham, miraculously discovered the relics of the holy martyr King
Oswyn, he gave the hair to Judith, wife of Tosti, Earl of Northumberland,
and she with all reverence placed it on a raging fire, whence it was
withdrawn, not only uninjured, but marvellously increased in lustre, to the
great edification of all beholders.994 A similar miracle attested the sanctity
of King Olaf the Saint, of Norway, when his hair was laid on a pan of live
coals, consecrated by Bishop Grimkel, to satisfy the incredulity of Queen
Alfifa.995 Guibert de Nogent likewise relates that, when his native town
became honored with the possession of an arm of St. Arnoul, the
inhabitants, at first doubting the genuineness of the precious relic, cast it
into the flames; when it vindicated its sanctity, not only by being fireproof,
but also by leaping briskly away from the coals, testimony which was held

to be incontrovertible.996 The historian of the monastery of Andres informs
us that when in 1084 the long-lost remains of the holy virgin Rotruda were
miraculously found, and Baldwin I., Count of Guisnes, desired to take the
sacred treasure to his town of Guisnes, it refused to be removed until he
proposed to place it on a wagon and allow a team of oxen to be divinely
guided to the spot where the saint desired to rest. This was accordingly
done, and the oxen carried the relics to a little chapel dedicated to St.
Medard, where steps were immediately taken to found an abbey. The
Seigneur of Andres, however, Baldwin Bochard, on whose lands the chapel
lay, foreseeing that a powerful monastery would be a troublesome neighbor,
and being an irreligious man, circulated defamatory libels impugning the
authenticity of the relics, and finally persuaded Count Baldwin to have
them tested by the ordeal of fire. This was accordingly done, and the
genuineness of the holy remains was proved to the satisfaction of all.
Bochard and his descendants continued inveterately hostile to St. Rotruda
and her monks, but all, without exception, were compelled, upon their
death-beds, to contribute a portion of their substance to her honor.997 The
custom continued even until the sixteenth century was well advanced. In the
Jeronymite monastery of Valdebran in Catalonia, a piece of the true cross
bears inscription that its genuineness was tested with fire by Archbishop
Miralles on October 2, 1530.998
The persistency of popular belief in this method of ascertaining guilt or
innocence is seen as recently as 1811, when a Neapolitan noble, suspecting
the chastity of his daughter, exposed her to the ordeal of fire, from which
she barely escaped with her life.999

CHAPTER V.
THE ORDEAL OF COLD WATER.

The cold-water ordeal (judicium aquæ frigidæ) differed from most of its
congeners in requiring a miracle to convict the accused, as in the natural
order of things he escaped. The preliminary solemnities, fasting, prayer, and
religious rites, were similar to those already described; holy water
sometimes was given to the accused to drink; the reservoir of water, or
pond, was then exorcised with formulas exhibiting the same combination of
faith and impiety, and the accused, bound with cords, was slowly lowered
into it with a rope, to prevent fraud if guilty, and to save him from drowning
if innocent.1000 According to Anglo-Saxon rule, the length of rope allowed
under water was an ell and a half;1001 in one ritual it is directed that a knot
be made in the rope at a distance of a long hair from the body of the
accused, and if he sinks so as to bring the knot down to the surface of the
water, he is cleared;1002 but in process of time nice questions arose as to the
precise amount of submergence requisite for acquittal. Towards the close of
the twelfth century we find that some learned doctors insisted that sinking
to the very bottom of the water was indispensable; others decided that if the
whole person were submerged it was sufficient; while others again reasoned
that as the hair was an accident or excrement of the body, it had the
privilege of floating without convicting its owner, if the rest of the body
was satisfactorily covered.1003
The basis of this ordeal was the belief, handed down from the primitive
Aryans, that the pure element would not receive into its bosom any one
stained with the crime of a false oath, another form of which is seen in the
ancient superstition that the earth would eject the corpse of a criminal, and
not allow it to remain quietly interred. The manner in which the church
reconciled it to orthodoxy is clearly set forth by Hincmar: “He who seeks to
conceal the truth by a lie will not sink in the waters over which the voice of
the Lord hath thundered; for the pure nature of water recognizes as impure,
and rejects as incompatible, human nature which, released from falsehood
by the waters of baptism, becomes again infected with untruth.”1004 The
baptism in the Jordan, the passage of the Red Sea, and the crowning
judgment of the Deluge, were freely adduced in support of this theory,

though these latter were in direct contradiction to it; and the most figurative
language was boldly employed to give some show of probability to the
results expected. Thus, in the elaborate formula which passes under the
name of St. Dunstan, the prayer offered over the water metaphorically
adjures the Supreme Being—“Let not the water receive the body of him
who, released from the weight of goodness, is upborne by the wind of
iniquity!”1005
In India the ordeal of cold water became simply one of endurance. The
stream or pond was exorcised with the customary Mantras:—

“Thou O water dwellest in the interior of all things like a witness. O
water thou knowest what mortals do not comprehend.
“This man being arraigned in a cause desires to be cleared from
guilt. Therefore mayest thou deliver him lawfully from this
perplexity.”

The patient stood in water up to his middle, facing the East, caught hold
of the thighs of a man “free from friendship or hatred” and dived under,
while simultaneously an arrow of reed without a head was shot from a bow,
106 fingers’ breadth in length, and if he could remain under water until the
arrow was picked up and brought back, he gained his cause, but if any
portion of him could be seen above the surface he was condemned.
Yajnavalkya says this form of ordeal was only used on the Sudras, or lowest
caste, while the Ayeen Akbery speaks of it as confined to the Vaisyas, or
caste of husbandmen and merchants. According to the Institutes of Vishnu,
it was not to be administered to the timid or those affected with lung
diseases, nor to those who gained their living by the water, such as
fishermen or boatmen, nor was it allowed during the winter.1006
Although, as we have seen (p. 268), the original cold-water ordeal in
India, as described by Manu, was precisely similar to the European form,
inasmuch as the guilty were expected to float and the innocent to sink, and
although in this shape it prevailed everywhere throughout Europe, and its
tenacity of existence rendered it the last to disappear in the progress of
civilization, yet it does not make its appearance in any of the earlier codes
of the Barbarians. The first allusions to it occur in the ninth century, and it

was then so generally regarded as a novelty that documents almost
contemporaneous ascribe its invention to the popes of that period. One story
is that when Leo III. fled in 799 from his rebellious subjects to
Charlemagne, and returned to Rome under the latter’s protection, the cold-
water ordeal was introduced for the purpose of trying the rebels or
recovering a treasure which they had stolen.1007 Another version asserts that
Eugenius II., who occupied the pontifical throne from 824 to 827, invented
it at the request of Louis le Débonnaire, for the purpose of repressing the
prevalent sin of perjury.1008 It is further worthy of note that St. Agobard,
Archbishop of Lyons, in his treatises against the judgments of God, written
a few years before the accession of Eugenius, while enumerating and
describing the various methods in use at that time, says nothing about that
of cold water.1009 But for the evidence of its pre-existence in the East, we
therefore should be justified in assuming that it was an innovation invented
by the Church of the ninth century. That it was a novelty is proved by the
necessity felt to adduce authority for its use.1010
At first, its revival promised to be but temporary. Only a few years after
its introduction it was condemned by Louis le Débonnaire at the Council of
Worms, in 829; its use was strictly prohibited, and the missi dominici were
instructed to see that the order was carried into effect, regulations which
were repeated by the Emperor Lothair, son of Louis.1011 These interdictions
were of little avail. The ordeal found favor with popular superstition, and
Hincmar contents himself with remarking that the imperial prohibition was
not confirmed by the canons of authoritative councils.1012 The trial by cold
water spread rapidly throughout Europe, and by all the continental races it
was placed on an equal footing with the other forms of ordeal. Among the
Anglo-Saxons, indeed, its employment has been called in question by some
modern writers; but the Dooms of Ethelstan sufficiently manifest its
existence in England before the Conquest, while as late as the close of the
twelfth century its use would seem to have been almost universal. The
assizes of Clarendon in 1166, confirmed at Northampton in 1176, direct an
inquest to be held in each shire, and all who are indicted for murder,
robbery, harboring of malefactors, and other felonies are to be at once,
without further trial, passed through the water ordeal to determine their
guilt or innocence.1013

As we have seen in the case of the iron ordeal, those of water, both cold
and hot, were variously described as patrician or plebeian in different times
and places. Thus Hincmar, in the ninth century, alludes to the water ordeals
as applicable to persons of servile condition;1014 a constitution of the
Emperor St. Henry II., about A. D. 1000, in the Lombard law, has a similar
bearing;1015 in the eleventh century an Alsatian document,1016 in the twelfth
Glanville’s treatise on the laws of England,1017 and in the thirteenth the
laws of Scotland1018 all assume the same position. This, however, was an
innovation; for in the earliest codes there was no such distinction, a
provision in the Salic law prescribing the æneum, or hot-water ordeal, even
for the Antrustions, who constituted the most favored class in the state.1019
Nor even in later times was the rule by any means absolute. In the tenth
century, Sanche, Duke of Gascony, desirous of founding the monastery of
Saint Sever, claimed some land which was necessary for the purpose, and
being resisted by the possessor, the title was decided by reference to the
cold-water ordeal.1020 In 1027, Welf II., Count of Altorf, ancestor of the
great houses of Guelf in Italy and England, having taken part in the revolt
of Conrad the Younger and Ernest of Suabia, was forced by the Emperor
Conrad the Salic to prove his innocence in this manner.1021 About the same
period Othlonus relates an incident in which a man of noble birth accused
of theft submitted himself to the cold-water ordeal as a matter of course;1022
while in 1068, at the Council of Vich, in Catalonia, held for the purpose of
enforcing the Truce of God, all persons accused of being directly concerned
in its violation are directed to be tried by the cold-water ordeal in the
Church of San Pedro, without distinction of rank.1023 Nearly two centuries
later, indeed, when all the vulgar ordeals were falling into disuse, the water
ordeal was established among the nobles of Southern Germany, as the mode
of deciding doubtful claims on fiefs, and in Northern Germany, for the
settlement of conflicting titles to land.1024
In 1083, during the deadly struggle between the Empire and the Papacy,
as personified in Henry IV. and Hildebrand, the imperialists related with
great delight that some of the leading prelates of the papal court submitted
the cause of their chief to this ordeal. After a three days’ fast, and proper
benediction of the water, they placed in it a boy to represent the emperor,
when to their horror he sank like a stone. On referring the result to

Hildebrand, he ordered a repetition of the experiment, which was attended
with the same result. Then, throwing him in as a representative of the pope,
he obstinately floated during two trials, in spite of all efforts to force him
under the surface, and an oath was exacted from all concerned to maintain
inviolable secrecy as to the unexpected result.1025
Perhaps the most extensive instance of the application of this form of
ordeal was that proposed when the sacred vessels were stolen from the
cathedral church of Laon, as related by a contemporary. At a council
convened on the subject, Master Anselm, the most learned doctor of the
diocese, suggested that, in imitation of the plan adopted by Joshua at
Jericho, a young child should be taken from each parish of the town and be
tried by immersion in consecrated water. From each house of the parish
which should be found guilty, another child should be chosen to undergo
the same process. When the house of the criminal should thus be
discovered, all its inmates should be submitted to the ordeal, and the author
of the sacrilege would thus be revealed. This plan would have been adopted
had not the frightened inhabitants rushed to the bishop and insisted that the
experiment should commence with those whose access to the church gave
them the best opportunity to perpetrate the theft. Six of these latter were
accordingly selected, among whom was Anselm himself. While in prison
awaiting his trial, he caused himself to be bound hand and foot and placed
in a tub full of water, in which he sank satisfactorily to the bottom, and
assured himself that he should escape. On the day of trial, in the presence of
an immense crowd, in the cathedral which was chosen as the place of
judgment, the first prisoner sank, the second floated, the third sank, the
fourth floated, the fifth sank, and Anselm, who was the sixth,
notwithstanding his previous experiment, obstinately floated, and was
condemned with his accomplices, in spite of his earnest protestations of
innocence.1026
Although the cold-water ordeal disappears from the statute-book in civil
and in ordinary criminal actions together with its kindred modes of
purgation, there was one class of cases in which it maintained its hold upon
the popular faith to a much later period. These were the accusations of
sorcery and witchcraft which form so strange a feature of mediæval and
modern society; and its use for this purpose may apparently be traced to
various causes. For such crimes, drowning was the punishment inflicted by

the customs of the Franks, as soon as they had lost the respect for individual
liberty of action which excluded personal punishments from their original
code;1027 and in addition to the general belief that the pure element refused
to receive those who were tainted with crime, there was in this special class
of cases a widely spread superstition that adepts in sorcery and magic lost
their specific gravity. Pliny mentions a race of enchanters on the Euxine
who were lighter than water—“eosdem præterea non posse mergi ne veste
quidam degravatos;”1028 and Stephanus Byzantinus describes the
inhabitants of Thebe as magicians who could kill with their breath, and
floated when thrown into the sea.1029 To the concurrence of these notions
we may attribute the fact that when the cold-water ordeal was abandoned, in
the thirteenth century, as a judicial practice in ordinary cases, it still
maintained its place as a special mode of trying those unfortunate persons
whom their own folly, or the malice and fears of their neighbors, pointed
out as witches and sorcerers.1030 No less than a hundred years after the
efforts of Innocent III. had virtually put an end to all the other forms of
vulgar ordeals, we find Louis Hutin ordering its employment in these
cases.1031 At length, however, it fell into desuetude, until the superstitious
panic of witchcraft which took possession of the popular mind caused its
revival in the second half of the sixteenth century. In 1487, Sprenger, while
treating of every possible detail concerning witchcraft and its prosecution,
and alluding to the red-hot iron ordeal, makes no reference whatever to cold
water or to the faculty of floating possessed by witches, thus showing that it
had passed completely out of remembrance as a test in these cases, both
popularly and judicially.1032 In 1564, Wier discusses it as though it were in
ordinary use in Western Germany, and mentions a recent case wherein a
young girl falsely accused was tested in this manner and floated, after
which she was tortured until the executioner himself wondered at her power
of endurance. As no confession could be extracted, she was discharged,
which shows how little real confidence was reposed in the ordeal.1033
Twenty years later, Scribonius, writing in 1583, speaks of it as a novelty,
but Neuwald assures us that for eighteen years previous it had been
generally employed throughout Westphalia,1034 and in 1579 Bodin alludes
to it as a German fashion which, though he believes in its efficacy, he yet
condemns as savoring of magic.1035 The crime was one so difficult to prove
judicially, and the ordeal offered so ready and so satisfactory a solution to