Chapter I: 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