Henry Charles Lea - Superstition and Force

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SUPERSTITION AND FORCE.

ESSAYS ON
THE WAGER OF LAWTHE WAGER OF BATTLETHE ORDEALTORTURE.

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.

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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.

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PREFACE.

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

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

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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.

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CONTENTS.

THE WAGER OF LAW.
RESPONSIBILITY OF THE KINDRED.
PAGE
Crime originally an offence against individuals
Tribal organizationResponsibility of kindred
Compensation for injuriesThe Wer-gild
THE OATH AND ITS ACCESSORIES.
Perplexities as to evidence
Guarantees required for the oath
CONJURATORS, OR PARTAKERS IN THE OATH.
The Wager of Law a prehistoric Aryan custom
It is adopted by the Church
SELECTION OF COMPURGATORS.
They are originally the kindred
Strangers admitted
Numbers required
Modes of selection	47
CONDITIONS OF COMPURGATION.
Employed in default of testimony
Except in Wales
Dependent on importance of case
As an alternative for the Wager of Battle
FORMULAS AND PROCEDURE.
Forms of compurgatorial oath
Modes of administration
Qualified confidence reposed in Compurgation
Conjurators liable to penalties of perjury
DECLINE OF COMPURGATION.
Early efforts to limit or abolish it
The oath no longer a positive asseveration
Influence of revival of Roman law
Conservatism of Feudalism
Gradual disappearance of Compurgation in Continental Europe
Preserved in England until 1833
Traces in the British colonies
Maintained in the Church and in the Inquisition
ACCUSATORIAL CONJURATORS.
Employed by the Barbarians
Maintained until the sixteenth century
THE WAGER OF BATTLE.
Natural tendency to appeal to Heaven
Distinction between the Judicial Combat and the Duel	103
ORIGIN OF THE JUDICIAL COMBAT.
A prehistoric Aryan custom
UNIVERSAL USE OF THE JUDICIAL COMBAT.
Its form Christianized into an appeal to God
Causes of its general employment
Practice of challenging witnesses
of challenging judges
CONFIDENCE REPOSED IN THE JUDICIAL DUEL.
Its jurisdiction universal
Implicit faith reposed in it
LIMITATIONS IMPOSED ON THE WAGER OF BATTLE.
Respective rights of plaintiff and defendant
Minimum limit of value
Questions of rank
Liability of women to the Combat
of ecclesiastics
The Combat under ecclesiastical jurisdiction
Not recognized in mercantile law
REGULATIONS OF THE JUDICIAL COMBAT.
Penalty for defeat
Lex talionis
Security required of combatants
Penalty for default
Choice of weapons
CHAMPIONS.
Originally kinsmen
Employment of champions becomes general	180
Hired champions were originally witnesses
Punishment for defeated champions
Professional championstheir disabilities
Efforts to limit the use of champions
Champions of communities
of the Church
DECLINE OF THE JUDICIAL COMBAT.
Iceland and Norway the first to prohibit it
Opposition of the Municipalities
of the Church
Influence of the Roman law
Decline of the Judicial Duel in Spain
Struggle over its abolition in France
Reforms of St. Louis
Resistance of the Feudatories
Reaction after the death of St. Louis
Renewed efforts of Philippe le Bel
Continued by his successors
Occasional cases in fourteenth, fifteenth, and sixteenth centuries
Final disappearance
Its later history in Italy, Hungary, Flanders, Russia, Scotland
Maintained in England until the nineteenth century
Traces of its legal existence in the United States
THE ORDEAL.
UNIVERSAL INVOCATION OF THE JUDGMENT OF GOD.
Tendency of the human mind to cast its doubts on God
China an exception

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