Vol. iV No. 4
TRANSLATIONS AND REPRINTS
FROM THE
Original Sources of European History
ORDEALS, compurgation, EXCOMMUN
ICATION AND INTERDICT
(revised edition)
Edited by Arthur C. Rowland, Ph.D.
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VoL. JV No. 4
TRANSLATIONS AND REPRINTS
FROM THE
Original Sources of European History
ORDEALS, compurgation, EXCOMMUN
ICATION AND INTERDICT
(revised edition)
Edited by Arthur C. Hovvland, Ph.D.
D
101
P46
V.4
no. 4
PUBLISHED FOR
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tSORTHEASTERN UNIVERSITY LIBRARY
FROM THE
ORIGINAL SOURCES OF EUROPEAN HISTORY.
]0
Translations and Reprints X'^if
no. H
Ordeals, Compurgation, Excommunication
AND Interdict.
Vol. IV.
No. 4.
TABLE OF CONTENTS.
PAOB
I. Compurgation.
1. Examples of Compurgatorial Oaths 3
2. Com-purgation of Queen Fredegonda 3
3. Compurgation of Adelher's Brothers 4
4. C( mpurgation of Bishop Norgaud 5
5. Fiisiaii Law against Perjury . ... 6
6. Reform in the Compurgatorial System 6
n. Judgments of God— Ordeai^.
1. Ordeal Formula 7
2. Ordeal of Hot Water lo
3. Ordeal of Cold Water il
4. Ordeal of Red-Hot Iron 12
5. Ordeal of the Glowing Ploughshares 13
6. Ordeal of Fire 14
7. Ordeal of the Cross 15
8. Skepticism Regarding the Ordeal 16
9. Prohibition of the Ordeal by the Church 16
10. Prohibition by Frederic II 18
III. Judgments of God— Wager of Battle.
1. Example of Judicial Duel in Germany 19
2. Example of Judicial Duel in Spain 20
3. Prohibition of Judicial Duel by Frederic II 21
IV. Excommunication.
St. Cyprian on the Unity of the Church 22
St, Ambrose's Threat against Theodosius, . .22
State Aid in the Enforcement of Excommunication . . 23
Excommunication of Frederic II. 24
Example of Excommunication ipso /ado 25
Excommunication of Animals 25
Declaration of Louis XIV 26
Interdict.
1. Canon of the Council of Limoges 27
2. Interdict laid on Normandy 28
3. Interdict laid on France. 29
4. Interdict laid on Venice in 1309 30
5. Interdict laid on Utrecht 31
6. Failure of the Interdict laid on Venice in 1606 . . .31
2 TRANSLATIONS AND REPRINTS.
MEDIEVAL LEGAL PROCEDURE.
INTRODUCTION.
In the jurisprudence of the Middle Ages we do not find any trial in the modern
sense of the word, no careful weighing of testimony followed by a decision in accord-
ance with the evidence. The chief function of the court was to give a fore-judgment
—the Beweisurh'i/— indicating which litigant was to have the privilege of offering
proof as to the justice of his contention. Any form of compromise was unknown.
One party was entirely in the right, the other absolutely in the wrong. The methods
of proof were compurgation, ordeal and wager of battle, and the party on whom the
burden of proof lay usually had the advantage in the subsequent proceedings. This
was especially the case with compurgation, where compliance with the minute details
of the prescribed forms insured complete success. In the ordeal this was less true,
the result oftener dependtng on the attitude of those conducting the ceremony. The
judicial duel and one form of the ordeal— that of the cross— were the only methods
of procedure in which both sides were given the opportunity of proof. Throughout
the Middle Ages the theory of the law placed the burden of proof on the negative
side; and it may be counted a most important step in the progress of European civili-
zation when the Germanic idea finally gave place to the Roman maxim that it is
impossible to prove a negative, and that the necessity of producing evidence lies with
the accuser. The barbarian system of negative proofs was worked out by means of
oaths and of appeals to the judgment of God through ordeals and single combat.
Whatever hardships the Germanic methods of proof may have involved theoretically,
the practical outcome was to make easy the escape of bold criminals. A Hungarian
manuscript * in which a record was kept for the 13th century, shows the numbers of
convictions and of acquittals in the ordeal of hot iron to be about equal, while in
England the accused was in certain cases given the choice whether he or the accuser
should bear the iron. Speaking of the condition of things in John's reign Maitland
says: "Criminal justice was extremely ineffectual; the punishment of a-criminal was
a rare event; the law may have been cruel . . . ., but bloody it was not. In Henry
III.'s time some satisfactory hanging was accomplished, but the number of present-
ments of undiscovered crime is very large." t The irrationality of such forms of
legal procedure was strongly felt by the most enlightened minds, and from the middle
of the 1 2th century we find ecclesiastical as well as secular legislation attempting to
bring about a change. This reform did not involve the abandonment of negative
proofs, but brought in the worst form of that system, namely, torture, wherein the
chances of escape were reduced to a minimum and conviction became practically
inevitalile.
I. COMPURGATION.
Compurgation — or wager of law as it was more commonly called in England, from
the legal phrase vadiare legem , to pledge or wage one's law — consisted in a litigant's
furnishing the court satisfactory proof of the justice of his cause by means of his own
♦ Cited in Pollock and Maitland's History of English Law, II., 596, note 5.
+ Select Pleas of the Crowti, p. xxiv.
COMPURGATION. 3
oath supported by that of helpers or compurgators who swore to the truth of their
principal's assertions. This method of proof dates back to remote antiquity among
the Germanic tribes, and on their conversion it was adopted by the church, which
made such extensive use of it in its efforts to secure immunity of the clergy from secu-
lar jurisdiction that the process finally became known as canonical compurgation.
The compurgators were originally kinsmen, who would have had to pay the wer-gild
in case the accused had been convicted of the charge, but later custom permitted
them to be neighbors or others acceptable to the court. Their number varied accord-
ing to the granty of the charge and the character of the accused. It is probable that
even in the earliest times compurgation was not resorted to when the proof of the
crime was plain and indubitable, and at a later period this rule was carefully enforced,
it being left to the discretion of the judge whether the accused should be allowed this
form of trial or not. Such permission was almost tantamount to acquittal, yet an
effort was made to check the abuses of the system by the provision that compurgators
who were so unfortunate as to support a losing cause should be punished as perjurers,
that is, should have one hand cut off. Some codes, however, permitted the redemp-
tion of the hand by the payment of a money fine. At an early period confidence in the
system became weakened, but it was not until the revival of the study of Roman law
about the middle of the 12th century that compurgation, together with most forms of
appeal to the judgment of God, began to lose ground in mediaeval jurisprudence.
From that time on it was discouraged by royal legislation. By 1300 it may be said
to have disappeared from the king's court in France, though it still lingered for a long
time in the provinces. In Germany it seems to have flourished as late as the i6th
century, as also in most of the countries of northern Europe; while in England it was
not formally abolished until 1833. In ecclesiastical courts the system was employed
down to the 17th century, though the development of the inquisitorial process in the
13th century deprived it of most of its characteristic features.
I. TWO FORMS OF COMPURGATORIAL OATH.
(a) Form. Turon., M.G. LL., Sec. V, p. 154. Latin. 8th century.
[Defendant made oath denying the crime.] Likewise, witnesses of
his own order, who were eye-witnesses and cognizant of the facts in
the case, swore after him that the aforesaid N. had given a true and
satisfactory oath in what he had sworn regarding the matter.
(b) Thorpe's Ancient Laws of England, I, p, 180. loth centur)'.
By the Lord, the oath which N. has sworn is clean and without
falsehood.
2. COMPURGATION OF QUEEN FREDEGONDA IN 585.
Gregory of Tours, Hist. Franc. Lib., viii, c. 9, M.G. SS. Mer., p. 330.
On the assassination of Chilperic I. king Gontran became guardian of his brother's
infant son. Doubts were entertained as to the child's legitimacy, especially as Chil*
peric was said to have been murdered by a paramour of queen Fredegonda. The
latter, however, fully established the paternity of the child by a compurgatorial oath,
and thus prevented the kingdom of Neustria from passing into the hands of Gontran.
4 TRANSLATIONS AND REPRINTS.
After this the king [Gontran] went to Paris and openly addressed
all the people, saying : " My brother Chilperic on his death is said to
have left a son, whose governors begged me at the mother's sohcitation
to stand sponsor for him at the baptismal font on the day of the
festival of our Lord's birth ; but they did not appear. Next they asked
me to have him baptised at Easter, but the child was not brought then.
For the third time they prayed me that he might be presented for the
sacred rite on St. John's Day, but the child was still kept back. And
so they have compelled me to leave home at this disagreeable season
of the year. Therefore I have come, and behold, the boy is con-
cealed, he is not shown me. For these reasons I feel certain that
matters are not as they have been represented, but that the child is,
as I believe, the son of some one of our nobles. For, if it had been
of our race, it would have been brought to me. Know, therefore, that
I will not acknowledge it until I receive satisfactory proofs of its
paternity." When queen Fredegonda heard this she summoned the
chief men of her kingdom, namely, three bishops and three hundred
nobles, and with them made oath that Chilperic was the father of the
child. By this means suspicion was removed from the king's mind.
3. COMPURGATION OF THE BROTHERS OF ADELHER.
Passio S. Bonifatii, in Jaff6, Bibliotheca Rer. Germ., Ill, p. 475. Latin. Ilth
century.
This story illustrates one of the abuses to which the system of compurgation lent
itself, and at the same time shows how the clergy attempted to overcome it by empha-
sizing the danger of immediate punishment to the perjurer.
Some time after this it happened that a certain priest named
Adelher was stricken with great weakness. He was indeed deeply
devoted to the bishop [Boniface] on account of his noble character,
and knowing the lattcr's secrets he served him truly. And when he
perceived the end of life approaching, by the council of the man of
God he gave what property he had inherited to St. Martin of Mainz.
After this, his sickness increasing, he died. Afterwards his brothers
violently seized what he had given to St. Martin in the following
places, .... And when they had been summoned and questioned
regarding their action, they promised to prove by an oath that the
property was rightly theirs ; and the bishop promised to be present.
On the appomted day they brought together a large number of their
relatives. The man of God was likewise there, and when the brothers
COMPURGATION. 5
had fetched their compurgators to the altar he is reported to have
said ; " If ye will swear, swear alone ; I do not desirw that ye should
cause the damnation of all these." But the brothers took the oath.
And immediately the bishop turning to them said • " Have ye sworn?"
" We have," they replied. Then to the elder he said : " Thou wilt
shortly be killed by a bear;" but to the younger, " Never wilt thou see
son or daughter from thy seed." Both of the prophecies proved true.
And so the church of St. Martin received the heritage given to it.
4. COMPURGATION OF BISHOP NORGAUD OF AUTUN.
Hugh of Flavigny, Chron. Lib. II, M.G. SS., VIII, p. 494. Latin.
Norgaud, Bishop of Autun, had been accused of simony by his canons, and had
attempted to clear himself by the oath-helpers; but the compurgators were deterred
by fear of the charge of perjury, and Norgaud was deposed. He refused to resign
his office, and in the following year succeeded in being reinstated by purging himself
in the absence of his enemies. The incident shows another form of abuse of the
system.
In the year of our Lord iioi John, bishop of Frascati, was sent by
the pope into England to look after the papal property The
cardinal? had now returned to Rome openly confirming the sentence
of deposition against the invader of the see of Autun and pronouncing
it to be canonical by authentic proofs, when the bishop of Lyons began
openly and publicly to condemn their action. As he was setting out
on a pilgrimage to Jerusalem in company with the bishop af Chalons-
sur-Saone and the simoniacal bishop of Autun, he was met on the way
by the aforesaid bishop of Frascati who, in the absence of accusers
and outside the boundaries of his province, received the purgation of
him of Autun. The bishop of Lyons aided and confirmed the oath as
follows : " I believe that Norgaud, bishop ot Autun, has sworn the
truth, so help me God." The bishop of Chalons-sur-Saone also
assisted and swore the same thing. 1 am astonished that the good
judgment of so great a man,* renowned everywhere for his inborn
goodness and honesty, whose unvarying constancy is venerated by the
Gallican church, could be deceived by the man to such an extent that
even to the present time he takes his part as a compurgator, cherishes
and protects him, and is almost the only one in the world to believe
good of him, although an almost universal sentiment condemns such
a favorable opinion.
• I. e., the bishop of Lyons.
6 TRANSLATIONS AND REPRINTS.
5. PUNISHMENT FOR PERJURY.
Lex Fris., xiv, 3, M.G. LL., Ill, p. 668. Latin. About 800.
As the efficiency of the whole system of compurgation depended upon the confix
dence that could be placed by the court in the word of the oath-helpers, it was neces-
sary to make the penalty for false swearing as severe as possible. The punishment
for perjury varied in different codes. That mentioned in the Frisian law is here given.
He who seeks the composition for homicide,* let him swear on the
relics of the saints that he will not accuse any one of this except
those whom he suspects of the murder ; and then let him accuse of
homicide one, two, or even three or four or however many there may
have been that wounded him who was killed. But, though there were
twenty or thirty, yet no more than seven can be accused, and let each
one of these who has been accused swear with his twelfth hand,t and
after the oath let him show himself mnocent by the judgment of God
in the ordeal of boiling water. Let the one who swore first go first to
the ordeal, and so on in order. He who shall be found guilty by the
ordeal, let him pay the composition for homicide, and to the king
double his wer-gild ; let the others who were his oath-helpers pay the
iine for perjury as has been previously enacted.J
6. REFORM OF INNOCENT III.
Corp. Jur. Can., cc. 5 and 13, Extra, V, 34. Latin.
Although by the 13th eentury compurgation had come to be looked upon with sus-
picion by royal judges, it yet continued for a long time an ordinary method of trial for
the clergy. Innocent III. introduced certain reforms which did away v^ath some of
the dangers of perjury, but he thereby weakened the force of the oaths and dealt a
mortal blow to the system.
We believe you are not ignorant of how many times the bishop of
Trent has been accused of simony. But the accusers though produc-
ing a writing were unable to bring forward witnesses according to
canonical form to prove that he had given the church of St. Peter to
the presbyter P. for four measures of corn. We decree to the common
council of our brethren that he ought to purge himself of the aforesaid
simony with three of his own order and four abbots and regular priests.
Now the manner of purgation shall be as follows ; First, the bishop
shall swear on God's sacred Gospel that, for giving the church of St
♦ In the case of a man killed in a crowd.
1 1, e., with eleven compurgators.
X This fine consisted of a single wer-gild each. Vid. Tit. X, eadem lege.
JUDGMENTS OF GOD — ORDEALS. »]
Peter to the presbyter P., he has received no price personally or by
the hand of a subordinate, nor to his knowledge has any one accepted
anything for him. Then the compurgators shall swear upon God's
holy Gospel that they believe he has spoken the truth.
But those who are brought forward to purge another of infamy are
held to affirm this alone by their oaths; namely, that they believe
that he who is being purged speaks the truth.
II. JUDGMENTS OF GOD— ORDEALS.
I. FORMULA FOR CONDUCTING THE ORDEAL OF BOILING WATER.*
From the breviary of Eberhard of Bamberg, ed. Zeumer in M.G. LL., Sec V,
Formuloe, p. 650. Latin. 12th or 13th century.
Let the priest go to the church with the prosecutors and with him
who is about to be tried. And while the rest wait in the vestibule of
the church let the priest enter and put on the sacred garments except
the chasuble and, taking the Gospel and the chrismarium and the
relics of the saints and the chalice, let him go to the altar and speak
thus to all the people standing near : Behold, brethren, the offices of
the Christian religion. Behold the law in which is hope and remission
of sins, the holy oil of the chrisma, the consecration of the body and
blood of our Lord. Look that ye be not deprived of the heritage of
such great blessing and of participation in it by implicating yourselves
in the crime of another, for it is written, not only are they worthy of
death who do these things, but they that have pleasure in them that
do them.t
Then let him thus address the one who is to undertake the ordeal :
I command thee, N., in the presence of all, by the Father, the Son,
and the Holy Ghost, by the tremendous day of judgment, by the
ministry of baptism, by thy veneration for the saints, that, if thou
art guilty of this matter charged against thee, if thoa hast done it, or
consented to it, or hast knowingly seen the perpetrators of this crime,
thou enter not into the church nor mingle in the company of Christians
unless thou wilt confess and admit thy guilt before thou art examined
in public judgment.
Then he shall designate a spot in the vestibule where the fire is to
be made for the water, and shall first sprinkle the place with holy
* This may be taken as a fair example of ordeal formulae in general, as they were
all of a similar nature.
tRom. i. 32.
8 TRANSLATIONS AND REPRINTS.
water, and shall also sprinkle the kettle when it is ready to be hung
and the water in it, to guard against the illusions of the devil. Then,
entering the church with the others, he shall celebrate the ordeal mass.
After the celebration let the priest go with the people to the place of
the ordeal, the Gospel in his left hand, the cross, censer and relics of
the saints being carried ahead, and let him chant seven penitential
psalms with a litany.
Prayer over the boiling water : O God, just Judge, firm and patient,
who art the Author of peace, and judgesi truly, determine what is
right, O Lord, and make known Thy righteous judgment. O Omnip-
otent God, Thou that lookest upon the earth and makest it to tremble,
Thou that by the gift of Thy Son, our Lord Jesus Christ, didst save the
world and by His most holy passion didst redeem the human race,
sanctify, O Lord, this water being heated by fire. Thou that didst
save the three youths, Sidrac, Misac, and Abednago, cast into the fiery
furnace at the command of Nebuchadnezzar, and didst lead them
forth unharmed by the hand of Thy angel, do Thou O clement and
most holy Ruler, give aid if he shall plunge his hand into the boiling
water, being innocent, and, as Thou didst liberate the three youths
from the fiery furnace and didst free Susanna from the false charge, so,
O Lord, bring forth his hand safe and unharmed from this water. But
if he be guilty and presume to plunge in his hand, the devil hardening
his heart, let Thy holy justice deign to declare it, that Thy virtue may
be manifest in his body and his soul be saved by penitence and
confession. And if the guilty man shall try to hide his sins by the
use of herbs or any magic, let Thy right hand deign to bring it to no
account. Through Thy only begotten Son, our Lord Jesus Christ, who
dwelleth with Thee.
Benediction of the water : I bless thee, O creature of water, boiling
above the fire, in the name of the Father, and of the Son, and of the
Holy Ghost, from whom all things proceed ; I adjure thee by Him
who ordered thee to water the whole earth from the four rivers, and
who summoned thee forth from the rock, and who changed thee into
wine, that no wiles of the devil or magic of men be able to separate
thee fjom thy virtues as a medium of judgment; but mayest thou
punish the vile and the wicked, and purify the innocent. Through
Him whom hidden things do not escape and who sent thee in the
flood over the whole earth to destroy the wicked and who will yet
come to judge the quick and the dead and the world by fire. Amen.
JUDGMENTS OF GOD — ORDEALS. 9
Prayer: Omnipotent, Eternal God, we humbly beseech Thee in
behalf of this investigation which we are about to undertake here
amongst us that iniquity may not overcome justice but that falsehood
may be subjected to truth. And if any one seek to hinder or obscure
this examination by any magic or by herbs of the earth, deign to bring
it to naught by Thy right hand, O upright Judge.
Then let the man who is to be tried, as well as the kettle or pot in
which is the boiling water, be fumed with the incense of myrrh, and
let this prayer be spoken : O God, Thou who within this substance of
water hast hidden Thy most solemn sacraments, be graciously present
with us who invoke Thee, and upon this element made ready by much
purification pour down the virtue of Thy benediction that this creature,
obedient to Thy mysteries, may be endued with Thy grace to detect
diabolical and human fallacies, to confute their inventions and argu-
ments, and to overcome their multiform arts. May all the wiles of the
hidden enemy be brought to naught that we may clearly perceive the
truth regarding those things which we \\ith finite senses and simple
hearts are seeking from Thy judgment through invocation of Thy holy
name. Let not the innocent, we beseech Thee, be unjustly condemned,
or the guilty be able to delude with safety those who seek the truth
from Thee, who art the true Light, who seest in the shadowy darkness,
and who makest our darkness light. O Thou who perceivest hidden
things and knowest what is secret, show and declare this by Thy grace
and make the knowledge of the truth manifest to us who believe in
Thee.
Then let the hand that is to be placed in the water be washed with
soap and let it be carefully examined whether it be sound ; and before
it is thrust in let the priest say : I adjure thee, O vessel, by the Father,
and the Son, and the Holy Ghost, and by the holy resurrection, and by
the tremendous day of judgment, and by the four Evangelists, that if
this man be guilty of this crime either by deed or by consent, let the
water boil violently, and do thou, O vessel, turn and swing.
After this let the man who is to be tried plunge in his hand, and
afterwards let it be immediately sealed up. After the ordeal let him
take a drink of holy water. Up to the time of the decision regarding
the ordeal * it is a good thing to mix salt and holy water with all his
food and drink.
A period of three days was allowed to elapse before the hand was examined.
lO TRANSLATIONS AND REPRINTS.
2. ORDEAL OF HOT WATER UNDERTAKEN BY A PRIEST TO CONFUTE A
HERETIC.
Gregory of Tours, in Gloria Martyr, c. 80, M.G. SS. Mer. I, p. 542. Latin.
An Arian presbyter disputing with a deacon of our religion made
venemous assertions against the Son of God and the Holy Ghost, as
is the habit of that sect. But when the deacon had discoursed a long
time concerning the reasonableness of our faith, and the heretic
blinded by the fog of unbelief continued to reject the truth, according
as it is written, " Wisdom shall not enter the mind of the wicked," the
former said ; " Why weary ourselves with long discussions? Let acts
approve the truth ; let a kettle be heated over the fire and some one's
ring be thrown into the boiling water. Let him who shall take it from
the heated liquid be approved as a follower of the truth, and after-
wards let the other party be converted to the knowledge of this truth.
And do thou also understand, O heretic, that this our party will fulfil
the conditions with the aid of the Holy Ghost; thou shalt confess that
there is no discordance, no dissimilarity in the Holy Trinity." The
heretic consented to the proposition and they separated after appoint-
ing the next morning for the trial. But the fervor of faith in which
the deacon had first made this suggestion began to cool through the
instigation of the enemy. Rising with the dawn he bathed his arm in
oil and smeared it with ointment. But nevertheless he made the round
of the sacred places and called in prayer on the Lord. What more
shall I say? About the third hour they met in the market place.
The people came together to see the show. A fire was lighted, the
kettle was placed upon it, and when it grew very hot the ring was
thrown into the boiling water. The deacon invited the heretic to take
it out of the water first. But he promplty refused, saying, " Thou who
didst propose this trial art the one to take it out." The deacon all
of a tremble bared his arm. And when the heretic presbyter saw it
besmeared with ointment he cried out : " With magic arts thou hast
thought to protect thyself, that thou hast made use of these salves, but
what thou hast done will not avail." While they were thus quarreling
there came up a deacon from Ravenna named lacinthus and inquired
what the trouble was about. When he learned the truth he drew his
arm out from under his robe at once and plunged his right hand into
the kettle. Now the ring that had been thrown in was a little thing
and very light so that it was thrown about by the water as chaff would
JUDGMENTS OF GOD — ORDEALS. II
be blown about by the wind; and searching for it a long time he
found it after about an hour. Meanwhile the flame beneath the kettle
blazed up mightily so that the greater heat might make it difficult for
the ring to be followed by the hand; but the deacon extracted it at
length and suffered no harm, protesting rather that at the bottom the
kettle was cold while at the top it was just pleasantly warm. When
the heretic beheld this he was greatly confused and audaciously thrust
his hand into the kettle saying, " My faith will aid me." As soon as
his hand had been thrust in all the flesh was boiled off the bones clear
up to the ellow. And so the dispute ended.
3. HINCMAR'S DESCRIPTION OF THE COLD WATER ORDEAL.
De Divort. Lotharii, c. vi, in Migne: Patrologia, Vol. 125, col. 668, 669. Latin.
Now the one about to be examined is bound by a rope and cast
into the water because, as it is written, each one shall be holden with
the cords of his iniquity.* And it is evident that he is bound for two
reasons; to wit, that he may not be able to practice any fraud in
connection with the judgment, and that he may be drawn out at the
right time if the water should receive him as innocent, so that he
perish not. Por as we read that Lazarus, who had been dead four days
(by whom is signified each one buried under a load of crimes), was
buried wrapped in bandages and, bound by the same bands, came forth
from the sepulchre at the word of the Lord and was loosed by the
disciples at his command ; so he who is to be examined by this judg-
ment is cast into the water bound, and is drawn forth again bound,
and is either immediately set free by the judgment of the judges, being
purged, or remains bound till the time of his purgation and is then
examined by the court And in this ordeal of cold water
whoever, after the invocation of God, who is the Truth, seeks to hide
the truth by a lie, cannot be submerged in the waters above which the
voice of the Lord God has thundered ; for the pure nature of the water
recognizes as impure and therefore rejects as inconsistent with itself
such human nature as has once been regenerated by the waters of
baptism and is again infected by falsehood.
• Prov. V. 12.
12 TRANSLATIONS AND REPRINTS.
4. DOOM OF KING AETHELSTAN REGARDING THE ORDEAL OF RED-HOT-
IRON.
Thorpe's Ancient Laws of England, I, p. 226. Anglo-Saxon and Latin. Also
^«ncil. Greatanlea. can. vii and viii, in Harduin VI, col. 569. Latin. 928 A. D.
If any one shall have given pledge to undergo the ordeal of iron
e . . . ., let him go three days beforehand to the priest whose duty it
is to bless him with the sign of the cross ; and let him live upon bread,
water, salt and herbs, and hear mass each one of the three days ; and
let him make his offering and go to the holy communion on the day
when he is to be examined by the ordeal; and before he is examined
let him swear that by the law of the realm he is innocent of the
charge Concerning the ordeal we enjoin in the name of God
and by the command of the archbishop and of all our bishops that
no one enter the church after the fire has been brought in with which
the ordeal is to be heated except the priest and him who is to undergo
judgment. And let nine feet be measured off from the stake to the
mark, by the feet of him who is to be tried And when the
ordeal is ready let two men from each side go in and certify that it is
as hot as we have directed it to be. Then let an equal number from
both sides enter and stand on either side of the judgment place along
the church, and let them all be fasting and abstinent from their wives
on the preceding night. And let the priest sprinkle them all with
water and let them bow themselves every one to the holy water and
let the holy Gospel and the cross be given them all to kiss. And no
one shall mend the fire any longer than the beginning of the hallowing,
but let the iron lie on the coals until the last collect. Afterwards let
it be placed on a frame, and let no one speak except to pray diligently
to God, the Father Omnipotent, to deign to manifest His truth in the
matter. And let the accused drink of the holy water and then let the
hand with which he is about to carry the iron be sprinkled, and so
let him go [to the ordeal]. Let the nine feet that were measured off
be divided into three sections. In the first division let him hold his
right foot, close to the stake. Then let him move his right foot across
the second into the third division, where he shall cast the iron in front
of him and hasten to the holy altar. Then let his hand be sealed up^
and on the third day let examination be made whether it is clean or
foul * within the wrapper. And whoever shall transgress these laws,
• A blister found on the hand was sufificient for conviction, in some cases at least.
See Eng. Hist. Rev., Ill, p. 159.
JUDGMENTS OF GOD ORDEAI^. 1 3
be the ordeal of no worth in his case, but let him pay the king a fine
of twenty shillings.
5. ORDEAL OF GLOWING PLOUGHSHARES UNDERGONE BY QUEEN EMMA.
Annales Winton. ann. 1043, in Annales Monastici II, pp. 23, 24. R. S. Latin.
This story, though evidently apocryphal,* was probably written about the end of
the 1 2th century, and gives an idea of the ceremony as it was employed at that lime.
The queen was brought at the king's command from Whewell to
Winchester and throughout all the night preceding her trial she kept
her vigil at the shrine of St. Swithin On the appointed day
the clergy and the people came to the church and the king himself sat
on the tribunal. The queen was brought before her son and questioned
whether she was willing to go through with what she had undertaken.
.... Nine glowing ploughshares were placed on the carefully swept
pavement of the church. After these had been consecrated by a short
ceremony the queen's shoes and stockings were taken off ; then her
robe was removed and her cloak thrown aside, and, supported by two
bishops, one on either side, she was led to the torture. The bishops
who led her were weeping and those who were much more afraid than
she were encouraging her not to fear. Uncontrollable weeping broke
out all over the church and all voices were united in the cry ** St.
Swithin, O St. Swithin, help her !" If the thunder had pealed forth at
this time the people could not have heard it, with such strength, with
such a concourse of voices did the shout go up to Heaven that St.
Swithin should now or never hasten to her aid. God suffers violence
and St. Swithin is dragged by force from Heaven. In a low voice the
queen offered this prayer as she undertook the ordeal : ** O God, who
didst free Susanna from the wicked elders and the three youths from
the fiery furnace, from the fire prepared for me deign to preserve me
through the merits of St. Swithin."
Behold the miracle ! With the bishops directing her feet, in nine
steps she walked upon the nine ploughshares, pressing each one of them
with the full weight of her whole body ; and though she thus passed
over them all, she neither saw the iron nor felt the heat. Therefore
she said to the bishops : "Am I not to obtain that which I especially
sought? Why do you lead me out of the church when I ought to be
tried within it?" For she was going out and yet did not realize that
See Freeman, Norman Conquest, II, p. 568.
14
TRANSLATIONS AND REPRINTS.
she had gone through the ordeal. To which the bishops replied as
well as they could through their sobs : " O lady, behold, you have
already done it; the deed is now accomplished which you think must
yet be done." She gazed and her eyes were opened; then for the
first time she looked about and understood the miracle. '' Lead me,"
she said, " to my son, that he may see my feet and know that I have
suffered no ill."
6. ORDEAL OF FIRE.
Raimond of Agiles, c. xviii. Recueil des Hist, des Crois., Hist. Occ, Vol. HI, p.
283. Latin. Cf. also Fulk of Chartres, c. x, and Ralph of Caen, c. cviii.
When the Holy Lance was discovered by Peter Bartholomew at Antioch during the
first crusade, doubts as to the genuineness of the relic were expressed by Boemund
and his followers. To silence these Peter was compelled to undergo the ordeal of
fire to prove that it was really the spear wherewith the side of our Lord had been
pierced. Raimond of Agiles was a firm believer in the relic.
All these things were pleasing to us, and having enjoined
on him [/. e., Peter Bartholomew,] a fast, we declaied tnat a fire
should be prepared upon the day on which the Lord was beaten with
stripes and put upon the cross for our salvation. And the fourth day
thereafter was the day before the Sabbath. So when the appointed
day came round a fire was prepared after the noon hour. The leaders
and the people to the number of 60,000 came together ; the priests
were there also with bare feet, clothed in ecclesiastical garments.
The fire was made of dry olive branches, covering a space thirteen feet
long ; and there were two piles with a space aboui a foot wide between
them. The height of these piles was four feet. Now when the fire
had been kindled so that it burned fiercely, I, Raimond, in presence
of the whole multitude, spoke : " If Omnipotent God has spoken to
this man face to face, and the blessed Andrew has shown him our
Lord's lance while he was keeping his vigil, let him go through the fire
unharmed. But if it is false let him be burned together with the lance
which he is to carry in his hand." And all responded on bended
knees, "Amen." The fire was growing so hot that the flames shot up
thirty cubits high into the air and scarcely any one dared approach it.
Then Peter Bartholomew clothed only in his tunic and kneeling before
the bishop of Albar called to God to witness " that he had seen Him
face to face on the cross, and that he had heard from Him those things
above written " Then when the bishop had placed the lance in
his hand, he knelt and made the sign of the cross and entered the
JUDGMENTS OF GOD — ORDEALS. 15
fire with the lance, firm and unterrified. For an instant's time he
paused in the midst of the flames, and then by the grace of God
passed through But when Peter emerged from the fire so that
neither his tunic was burned nor even the thin cloth with which the
lance was wrapped up had shown any sign of damage, the whole
people received him after that he had made over them the sign of the
cross with the lance in his hand and had cried, " God aid us !" All
the people, I say, threw themselves upon him and dragged him to the
ground and trampled on him, each one wishing to touch him or to get
a piece of his garment, and each thinking him near some one else.
And so he received three or four wounds in the legs where the flesh
was torn away, his back was injured and his sides bruised. Peter had
died on the spot, as we believe, had not Raimond Pelet, a brave and
noble soldier, broken through the wild crowd with a band of friends
and rescued him at the peril of their lives After this * Peter
died in peace at the hour appointed to him by God, and journeyed to
the Lord ; and he was buried in the place where he had carried the
lance of the Lord through the fire-t
7. ORDEAL OF THE CROSS.
(a) Capitulary of Charles the Great.
Charta di\'is., c. 14, Baluze: Capitularia I, col. 309. Latin.
In the ordeal of the cross the two litigants were placed standing before a crucifix
with their arms outstretched. The one who was able to maintain this position the
longer won his case. This is the only form of ordeal in which both parties to the
litigation were subjected to the same test. Consequently it partakes more of the na-
ture of a duel, and does not leave so wide a discretion to the court.
If a dispute, contention, or controversy shall arise between par-
ties regarding the boundaries or limits of their kingdoms of such a
nature that it cannot be settled or terminated by human evidence,
then we desire that for the decision of the matter the will of God and
the truth of the dispute may be sought by means of the judgment of
* Twelve days later.
+ A great controversy arose as to the cause of his death, his friends ascribing it to
his rough treatment after the ordeal, his enemies declaring that it was due to the
bums he had received. From the statement of the anonymous author of an abridge-
ment to Fulk of Chartres to the effect that Peter did not live through two weeks fol-
lowing the ordeal, but died on the twelfth day, it would seem that a fortnight was the
period fixed by law within which the judgment of God was expected to manifest itself.
Gesta Franc. Iherusalem expugnantium, c. XXVI.
1 6 TRANSLATIONS AND REPRINTS.
the cross, nor shall any sort of battle or duel ever be adjudged for the
decision of any such question.
(b) Capitulary of Louis le Debonnaire.
Capit. EccL, ann. 8i8, c. 27. M.G. LL., vol. I, p. 209. Latin.
It is enacted that hereafter no one shall presume to undertake any
sort of ordeal of the cross ; lest that which was glorified by the passion
of Christ should be brought into contempt through any one's temerity.
8. DISTRUST OF ORDEAL SHOWN BY LAW OF HENRY II.
Assize of Clarendon, § 14, in Gesta Heinrici IL, II, p. clii, R. S. Latin.
Also the lord king wishes that those who shall make their law * and
shall be acquitted by the law, if they be of very bad repute and evilly
defamed by the testimony of many legal men, shall abjure the realm,
so that within eight days they shall cross the sea unless the wind shall
detain them ; and with the first wind they shall have thereafter they
shall cross the sea ; and moreover they shall not return to England
except by the grace of the king; and there let them be outlawed.
And if they return let them be seized as outlaws.
9. ABOLITION OF ORDEALS.
(a) Decree of Innocent III.
Corp. Jut. Can., c. 9, Extra, III, 50 (Can. 18, Cone. Lateran. IV, ann. 1215).
Latin.
Also let no ecclesiastic be placed in command of low soldiery, or
bowmen, or men of blood of that sort, nor let any subdeacon, deacon,
or priest practice any office of surgery which requires burning or
cutting. Nor let any one pronounce over the ordeal of hot or cold
water or glowing iron any benediction or rite of consecration, regard
being also paid to the prohibitions formerly promulgated respecting
the single combat or duel.
(b) Instructions of Henry III. to his judges in 1219.
Rymer's Foedera (old ed.), I, p. 228. Latin.
The king to his beloved and faithful Philip de Ulletot and his fellow
judges traveling in the counties of Cumberland, Westmoreland, and
Lancaster, greeting : Since it was doubtful and undetermined at the
beginning of your eyre by what sort of judgment they ought to be
* I. e., who shall be admitted to the ordeal.
JUDGMENTS OF GOD — ORDEALS.
17
brought to trial who were accused of theft, murder, incendiarism, and
similar crimes, inasmuch as the Roman Church has prohibited the
judgment of fire and water, it is enacted by our council that in this
your eyre the matter be thus conducted for the present in regard to
those accused of such excesses. To wit, that those accused of the
aforesaid major crimes, who may be strongly suspected of being guilty
and regarding whom the suspicion might still be entertained that they
would do harm should they be allowed to abjure the realm ; that such
persons should be retained in our prison and guarded carefully that
they may incur no danger of life or limb by occasion of our prison.
But those who may be accused of moderate crimes, in whose cases the
ordeal of fire or water would have been applicable had it not been
prohibited, and who are not suspected of being liable to do harm
afterwards if they should abjure our realm, let them abjure the realm.
As to those, however, who may be accused of minor crimes, and who
are not held in suspicion, let them give sure and sufficient pledge of
fidelity and intention to keep the peace and so let them be dismissed.
Since, therefore, our council has provided nothing more definite in
this matter, we leave to your discretion to observe the aforesaid regula-
tion, so that you who are better able to recognize the persons of the
men, the form of the crime and the truth of the matter itself may
proceed in this according to your conscience and discretion.
(c) Edict of Pope Honorius in 1222 renewing the prohibition of the ordeal.
Corp, Jur. Can. (ed. Friedberg), c. 3, Extra, V, 35. Latin.
Our beloved sons recently baptized in Livonia have addressed a
serious complaint to us that the Teutonic Knights of Livonia and
certain other advocates and judges who exercise temporal power in the
country, if ever the inhabitants are accused of any sort of crime,
compel them to undergo the judgment of red-hot iron ; and if they
suffer any burns from this, they inflict civil penalties on them much
to the scandal and terror of the converts and of those about to be
converted. Since, therefore, this sort of judgment has been utterly
forbidden by legitimate and canonical decrees, inasmuch as God ap-
pears thereby to be tempted, we command thee that, setting aside any
appeal, and warning them by ecclesiastical censure, thou shouldst
compel the said brothers and others to desist from all similar op-
pression of the converts.
1 8 TRANSLATIONS AND REPRINTS.
lO. LAW OF FREDERIC II. AGAINST THE ORDEAL.
Const. Sicular., Lib. II, Tit. 31. Huillard-BrehoUes : Hist. Dip. Frid., II, vol.
IV, part I, p. 102. Latin.
The laws which are called by certain ingenuous ipeisons paridi/es,*
which neither regard nature nor give heed to the truth, We, who
investigate the true science of laws and reject their errors, abolish from
our tribunals ; forbidding by the edict published under sanction of our
name all the judges of our kingdom ever to impose on any of our
faithful subjects these paridt7es laws, which ought rather to be called
laws that conceal the truth ; but let them be content with ordinary
proofs such as are prescribed in the ancient laws and in our constitu-
tions. Indeed, we consider that they deserve ridicule raiher than
instruction who have so little understanding as to believe that the
natural heat of red-hot iron grows mild, nay (what is more foolish),
even turns to coldness without the working of an adequate cause ; or
who assert that on account of a troubled conscience alone a criminal
does not sink into the cold water, when rather it is the holding in of
sufificient air that does not allow of his being submerged.!
IIL JUDGMENTS OF GOD— WAGER OF BATTLE.
The practice of appealing to the judgment of God to settle questions which it
transcended man's wisdom to decide is of prehistoric origin. When the Gennans
invaded the empire a great impetus was given this custom by the resulting complica-
tions in legal relations. The theory of the personality of the law made it difficult, if
not impossible, to equitably decide questions arising between subjects of two different
races by any other method than an appeal to divine justice, and hence we find the
ordeal and wager of battle greatly extended and its procedure adopted and system-
atized by the church. In this way the latter obtained great influence over the minds
of the barbarians, and added largely to its power and revenues by assuming control of
the administration of justice. The ordeal continued to flourish until the 13th century,
when the developing national monarchies gradually forced it to give way. The papal
influence, likewise thrown on the side of the reform, materially aided the movement
in spite of the opposition of the local clergy. The wager of battle, however, though
even more strenuously opposed by the church, did not meet with the same hostility
from the secular authorities, and is to be met with occasionally as late as the i6th
century. In England it was not formally abolished until 1819.
* Lex paribilis, from a duel or combat of peers or champions. Ducange.
t This last clause is supposed to refer to some artifice whereby those conducting the
ordeal secured a conviction when they so desired.
JUDGMENTS OF GOD WAGER OF BATTLE. 1 9
I. EXAMPLE OF JUDICL^L DUEL IN GERMANY.*
Wiponis Vita Chuonradi Imp., c. 33, ann. 1033. M.G. SS., XI, p. 271.
The emperor having levied a force in Saxony marched upon the
Luitzes,t a people who were formerly half Christians but who have
wickedly apostatized and are now become thorough pagans. In their
district he put an end to an implacable strife in a wonderful manner.
Between the Saxons and the pagans at that time fighting and raids
were being carried on incessantly, and when the emperor came he
began to inquire which side had first broken the peace that had long
been observed inviolate between them. The pagans said that the
peace had been disturbed first by the Saxons, and they would prove
this by the duel if the emperor would so direct. On the other side
the Saxons pledged themselves to refute the pagans in like manner by
single combat, though as a matter of fact their contention was untrue.
The emperor after consulting his princes permitted the matter to be
settled between them by a duel, though this was not a very wise act.
Two champions, each selected by his own side, immediately engaged.
The Christian, trusting in his faith alone, though faith without the
works of justice is dead, began the attack fiercely without diligently
considering that God, who is the Truth, who maketh His sun to shine
upon the evil and the good, and the rain to fall upon the just and the
unjust, decides all things by a true judgment. The pagan on the other
hand resisted stoutly, having before his eyes only the consciousness of
the truth for which he was fighting. Finally the Christian fell wounded
by the pagan. Thereupon his party were seized with such elation and
presumption that, had the emperor not been present, they would forth-
with have rushed upon the Christians ; but the emperor constructed
the fortress Werben in which he placed a garrison of soldiers to check
their incursions and bound the Saxon princes by an oath and by the
imperial commands to a unanimous resistance against the pagans.
Then he returned to Franconia.J
* For a good example of the judicial duel under Otto I. see Widukind, Saxon
Chronicle, ann. 938, trans, in Emerton's Introduction to the Middle Ages^ p. 83.
t A Wendish tribe living on the east side of the river Elbe.
X For a discussion of this incident see Jahrbiicher d. deutschen Geschichte, Konrad
II., II, 94 sq.
20 TRANSLATIONS AND REPRINTS.
2. THE JUDICIAL COMBAT IN SPAIN.
Rodericus Toletanus, Lib. VI, c. 26. Bel: Rerum Hispanic. Script., I, p. 241.
Latin. 13th century.
The old Gothic or Mozarabic ritual long preserved its place in the churches of
Spain, but Gregory VH. on his accession determined to substitute the Roman in place
of the old national service in Castile and Leon. The supporters of the papal policy
were not at first able to carry their point by means of argument, and resort was had
to single combat between champions, one representing the Roman, the other the
Gothic ritual.*
But before the recall [of the legate Richard] the clergy and people
of all Spain were thrown into confusion by being compelled by the
legate and the prince to accept the Gallic ritual. On an appointed
day the king, the primate, the legate, the clergy, and a vast multitude
of people came together and a long altercation took place, the clergy,
soldiery and people firmly resisting a change in the service, the king,
under the influence of the queen, supporting the change with threats
and menaces. Finally the demands of the soldiers brought matters
to such a crisis that it was decided to settle the dispute by a duel.
When two soldiers had been selected, one by the king, who contended
for the Gallic ritual, the other by the soldiery and people, who were
equally zealous for the ritual of Toledo, the king's champion was de-
feated on the spot to the exultation of the people, because the victor
was the champion of the Toledo service. But the king was so far
persuaded by queen Constantia that he did not recede from his de-
mands, adjudging the duel to be of no weight And when
thereupon a great tumult arose among the soldiers and the people,
it was finally decided that a copy of the Toledo ritual, and one of
the Gallic should be placed in a great fire. When a fast had been
imposed upon all by the primate, legate, and clergy, and all had
devoutly prayed, the Gallic office was consumed by the fire, while the
Gothic leaped np above the flames and was seen by all who stood
there praising the Lord to be wholly uninjured and untouched by the
fire. But since the king was obstinate and stiff-necked he would not
turn aside either through fear of the miracle or through suppHcation of
the people, but, threatening confiscation and death against those who
resisted, he ordered the Gallic office to be adopted in all his dominions.
Whence arose from the grief and sorrow of all the proverb, Quo volunt
RegeSj vadunt Leges,
* See Hefele, Conciliengeschichte, V, pp. 158 and 200.
JUDGMENTS OF GOD — WAGER OF BATTLE. 21
3. LAW OF FREDERIC IL ABOLISHING WAGER OF BATTLE IN SICILY.
Const. Sicular., Lib. II, Tit. 33. H.-BrehoUes: Op. cit., vol. IV, part I, p. 105.
Latin.
We will that the single combat, or duel, as it is commonly called,
shall never be adjudged between men subject to our jurisdiction,
except in a few specified cases ; for it cannot be called so much a
real proof as a sort of divination, which is not in accord with nature
but is opposed to universal law and inconsistent with just reason. For
it is almost if not quite impossible for two champions to come together
so equally matched that the one is not wholly superior to the other in
strength or does not excel him in some other way by greater vigor and
courage or at least in cleverness. But we exclude from the benefit of
this humane edict murderers who are charged with having caused the
death of others by using poison or some other secret means; and even
■against these we do not sanction the wager of battle at the beginning
of the trial, but command that ordinary proofs be first adduced against
them if there be any such at hand, and that only then, as a last resort,
when the crime cannot be fully established by other proofs after a
thorough investigation by the officials of the court, resort may be had
to the judgment of battle to decide the above charges : and we wish
all these things to be arranged through the medium of a judge fully
cognizant of the proceedings, that he may carefully and diligently
investigate the proofs brought out by the inquisition. And if the
charges shall not be proved as stated let him grant the accuser per-
mission to offer battle, if nothing was brought out in court prejudicial
to the accuser's right. But if the accuser should first offer to prove
the crime by witnesses and their testimony should be insufficient, the
trial shall not take place by the double method of inquisition and battle,
but the defendant, not being convicted of guilt and being presumably
innocent, shall be set free ; because we wish the same law to be
observed among all, both Franks and Lombards, and in all cases.
In our new constitution, indeed, wager of battle has been sufficiently
recognized in the case of the knights and nobles of our kingdom and
of others wno are able to offer battle. For we except the crime of
treason, respecting which we preserve the judicial duel. Nor is it
strange if we subject traitors, secret murderers and poisoners to the
duel (though not so much as a method of judgment as to terrify them) ;
not because our Serenity deems that just in their case which it has
declared unjust in others, but because we desire that such homicides
2 2 TRANSLATIONS AND REPRINTS.
as have not feared to lay secret plots against human life, which God's
power alone can call into existence, should be publicly subjected to this
terrible method of proof in the sight of all men as a punishment and
an example to others. Those also we exclude from the terms of our
leniency who do not hesitate to plot against our peace in which the
peace of all the rest is involved.
IV. EXCOMMUNICATION.
The church as a voluntary organization had from the beginning exercised the right
of excluding from its membership those who did not conform to its standards, but it
was not until Cyprian's time that this came to be generally looked upon as equivalent
to exclusion from salvation. As the theory of the church's true mission developed in
the minds of its leaders, the field of excommunication rapidly expanded and the tone
of its priesthood grew more certain. This change is well shown by comparing St.
Ambrose's mild remonstrance against Theodosius with the haughty attitude of the
popes of the 12th and 13th centuries, and by noting how the state was compelled to
support by civil penalties the sentence of the church. Finally excommunication came
to be looked upon as Httle more than a ban or curse which could be employed by
the clergy to avenge their private wrongs, to strengthen contracts, or even to punish
animals or demons. The abuses to which the system gave rise became so great that
even before the Reformation the censure had lost much of its force, and since that
time it has been less and less employed.
I. ST. CYPKIAN ON THE NECESSITY OF MEMBERSHIP IN THE CHURCH.
De Unitate Ecclesise, § 6, in Migne, Pat. Lat., vol. IV, col. 502, 503.
The spouse of Christ cannot be an adulteress, she is uncorrupted
and pure. She knows but one house, she watches over the sanctity of
one couch with chaste modesty. She preserves us for God; she
confers the kingdom on the son whom she has brought forth. Whoso-
ever separates himself from the church and is joined to an adulteress
is separated from the promises of the church ; nor will he attain to
the rewards of Christ who deserts Christ's church. He is an alien, he
is profane, he is an enemy. He can no longer have God for his father
who has not the church for his mother. If any one could escape who
was outside the ark of Noah, so also may he escape who shall be out-
side the bounds of the church.
2. ST. AMBROSE'S THREAT OF EXCOMMUNICATION AGAINST THEODOSIUS.
Epist. LI, §§ 11-13, in Migne, Pat. Lat., vol. XVI, col. 1162, 1163. Latin.
I have written these things, indeed, not to confound you, but that
the example of these kings might induce you to put away this sin from
EXCOMMUNICATION.
as
your kingdom, which you will accomplish by humiliating your soul to
God. You are a man and temptation has come to you ; confess it.
Sin is not put away except by tears and penitence. Neither an angel
can do it nor an archangel ; the Lord himself, who alone can say, " I
am with you," does not forgive us if we have sinned except we be
penitent.
I persuade, I beg, I exhort, I admonish; because it is a grief to me
that you who were an example of unusual piety, who were the very
personification of clemency, who would not allow guilty individuals to
be brought into danger, that you do not grieve at the death of so many
innocent persons. Although you have fought battles most successfully,
although in other things also you are worthy of praise, yet the crown
of all your work was always piety. This the devil envied you, since it
was your ever-present possession. Conquer him while as yet you have
wherewith you may conquer. Do not add another sin to your sin,
that you may practice what it has injured many to practice.
I, indeed, though in all other things a debtor to your kindness which
I can never be ungrateful for, which kindness surpassed that of many
emperors and was equaled by the kindness of one only, I, I say,
have no cause for a charge of contumacy against you, but I have a
cause for fear ; I dare not offer the sacrifice if you will to be present.
Is that which is not allowed after shedding the blood of one innocent
person to be allowed after shedding the blood of many? I do not
think so.
3. STATE AID EST THE ENFORCEMENT OF EXCOMMUNICATION.
(a) Law of Lothair I. in 824.
Leges Langobard. cap. 15, M.G. LL., IV, p. 542. Latin.
It had always been the policy of the Carolingians to enforce the decrees of the
church, but this is the first general direction to counts to assist the bishops with
secular penalties.
It is our will, so often as any person shall be brought to trial for any
crimes or misdemeanors and his contumacy shall render him liable even
to the episcopal excommunication, that the bishop shall associate with
himself the count of his district so that the obstinate offender may be
forced by the united action of both to render obedience to the com-
mand of the bishop. If he does not obey let him pay us our fine ;
but if he still remains contumacious let him be excommunicated by the
bishop. Then if he shall refuse to amend his w^ys after being excom-
municated, let him be bound and imprisoned by the count until we
24 TRANSLATIONS AND REPRINTS.
render our judgment against the hardened offender. If, however, it
be the count who is the guilty party, let his bishop report him to us;
and if the culprit be an imperial vassal, let the count proceed against
him as above directed ; but if he will not hear, let him be reported to
us before he is cast into prison.
(b) Enactment of Frederic II. in 1220.
Confoederatio cum Princip. Ecclesiast., §§ 6-8, M.G. LL., II, p. 236. Latin.
Also we will avoid the company of excommunicated persons, as it
is right we should do, provided that they are denounced to us by word
of mouth or by letters or by messengers worthy of confidence ; and
unless absolution be previously granted we will not concede them any
standing in our courts : this distinction, however, being made, that
excommunication shall not hinder them from appearing as defendants,
though without advocates ; but it shall take away from them the right
and power of acting as judges or witnesses, or of bringing suit against
others.
And since the temporal sword was made subsidiary to the spiritual,
if it be made known to us in any of the foregoing ways that the excom-
municates have persisted in their contumacy for more than six week^
our proscription shall be added to the excommunication, nor is it to
be withdrawn unless the excommunication be previously recalled.
So in this manner and in all other ways, that is to say, by just and
efficacious judgment, we have solemnly promised to aid and defend
them [the clergy], and they on their side have pledged their faith to
assist us to the extent of their power against any man who may offer
violent resistance to any such judgment of ours.
4. EXCOMMUNICATION OF FREDERIC II. BY INNOCENT IV. AT THE COUNCIL
OF LYONS, 1245.
Harduin, Concilia, VII, col. 3&5, 386. Latin.
[Innocent recapitulates the efforts of the popes to maintain peace
between the church and the empire and dwells upon the sins of the
emperor. Then, after charging him with the particular crimes of per-
jury, sacrilege, heresy, and tyranny, he proceeds as follows ;] — We,
therefore, on account of his aforesaid crimes and of his many other
nefarious misdeeds, after careful deliberation with our brethren and
with the holy council, acting however unworthily as the vicar of Jesus
Christ on earth and knowing how it was said to us in the person of the
iM CATION.
25
blessed apostle Peter, Whatsoever ye shall bind on earth shall be bound
in heaven; We announce and declare the said prince to be bound
because of his sins and rejected by the Lord and deprived of all honor
and dignity, and moreover by this sentence we hereby deprive him of
the same since he has rendered himself so unworthy of ruling his king-
dom and so unworthy of all honors and dignity ; for, indeed, on account
of his iniquities he has been rejected of God that he might not reign
or exercise authority. All who have taken the oath of fidelity to him
we absolve forever from such oath by our apostolic authority, absolutely
forbidding any one hereafter to obey him or look upon him as emperor
or king. Let those whose duty it is to select a new emperor proceed
freely with the election. But it shall be our care to piovide as shall
seem fitting to us for the kingdom of Sicily with the council of our
brothers, the cardinals.
5. COMMINATORY CLAUSE FROM A CHARTULARY OF THE ABBEY OF
ST. PETER OF CHARTRF.S, 9 88 A. D.
Found in Giry, Manuel de Diplomatique, p. 564.
It was usual for mediaeval legal documents, and especially for deeds of gift, to con-
tain clauses excommunicating latae senieniiae any who might venture to infringe in
any way upon the provisions contained in the document.
Now if any one shall think to infringe on this deed of gift or bring a
false action against it, may he be seized with jaundice and smitten
with blindness; may he bring his present life to a miserable ending by
a most wretched death and undergo everlasting damnation with the
devil, where bound with red-hot chains, may he groan forever and ever,
and may the worm that never dies feed on his flesh, and the fire that
cannot be quenched be his food and sustenance eternally.
6. FORMULA OF EXCOMMUNICATION OF ANIMALS.
Found in Du Cange, Glossarium, s. v. Excommunicatio.
Examples of the excommunication of animals are not met with frequently in mediaeval
records, and then usually only in remote and unenlightened districts. They show,
however, the tendency of excommunication to become a mere curse or magic rite,
and emphasize one of the abuses of the system which gradually threw discredit upon
it and caused the church to restrict it to narrower limits.
In the name of the Lord, Amen. Complaint having been made in
court by the inhabitants of Villenoce in the diocese of Troyes against
the locusts and caterpillars and other such animals, called in the vulgar
tongue HurebecSy that have laid waste the vineyards of that place for
36 TRANSLATIONS AND REPRINTS.
several years, and continue to do so, as is asserted on the testimony of
credible witnesses and by public rumor, to the great detriment of the
inhabitants of that and neighboring regions; and their request having
been considered that the aforesaid animals should be warned by us and
compelled by threats of ecclesiastical punishment to depart from the
territory of said town, etc. We, by the authority that we exercise in
this region, warn the aforesaid locusts, caterpillars and other animals,
under whatsoever name known, by these presents, under threat of
curses and excommunication to depart from the vineyards and land of
the said town of Villenoce by virtue of this sentence within six days
from the publication of this warning and to do no further injury either
there or elsewhere in the diocese of Troyes. But, if the above men-
tioned animals do not implicitly obey this our warning within the
specified time, then at the expiration of the six days by virtue of our
said authority we excommunicate them through this document and
curse them by the same.
7. DECLARATION OF 1 68 2 BY LOUIS XIV.
Given in Michaud, Louis XIV. et Innocent XL, T. IV, p. 68. French.
Inasmuch as St. Peter and his successors, the vicars of Jesus Christ,
and even the whole church, have received power from God only over
spiritual things which concern salvation, and not at all over temporal
and civil affairs, since Jesus Christ Himself teaches that His kingdom
is not of this world and that we should re?ider tmto Ccesar the things
which are Ccesar' s a?td unto God the things that are God^s ; and since,
likewise, this precept of the apostle Paul can in no way be altered or
called into question: Let every soul be subject unto the higher powers »
For there is 710 power but of God : the powers that be are ordained of
God. Whosoever the?'efore resisteth the power resisteth the o?'dinance
of God. Therefore we declare that princes and kings are not subject
by God's command to any ecclesiastical power in temporal things ;
that they cannot be deposed either directly or indirectly by the
authority of the heads of the church; that their subjects cannot be
granted dispensation to refuse the allegiance and obedience which they
owe, or absolved from the oath of fidelity; and that this doctrine
indispensable to public peace and not less advantageous to the church
than to the state, must be invariably followed as conforming to the
Word of God, to the traditions of the holy Fathers, and to the example
of the saints.
INTERDICT. 27
V. INTERDICT.
Interdict is a censure that deprives the faithful of the use of most of the sacra-
ments, of participation in the celebration of the divine offices, and of ecclesiastical
sepulture. It is differentiated from excommunication in that it does not entail segre-
gation or exclusion from church membership, so that those on whom it is laid are not
thereby handed over to Satan. It was employed especially to coerce princes, as it
was the most effective means of exciting public indignation and arousing a people
against its ruler. The interdict grew out of a wide use of excommunication, and was
first employed by the clergy of northern France in the turbulent period following the
extinction of the Carolingian dynasty. At first it was looked upon with little favor by
the popes, but by the beginning of the 12th century they had adopted it as one of
their most effective instruments in dealing with the European states. The wide range
of the papal activity tended to bring the censure more and more into use as a political
weapon, and at length it ceased almost entirely to be employed as a punishment for
immorahty. As the censure became thus secularized its influence decreased, until
finally the state, relpng upon the loyalty of its citizens, took advantage of their indif-
ference to spiritual punishments and dared openly to defy the papal commands. The
last important instance of its use was when the pope laid an interdict on Venice in
1606. By that date it was felt to be an anachronism; it had not been previously
employed for a long time, and owing to its complete failure in this case it was hence-
forth little used. Since then only a few instances of interdict have been known,
occurring mostly in Spain and Spanish America.*
I. ENACTMENT OF THE COUNCIL OF LIMOGES IN I03I.t
Harduin, Concilia, VI, col. 885, 886. Latin.
If they do not keep the peace lay the whole territory of Limoges
under a public excommunication : J to wit, in such manner that no
one unless a priest or a beggar or a traveler or an infant of two years
or less may be buried in all Limoges or be carried into another diocese
for burial. Let divine service be celebrated secretly in all the
churches, and let baptism be given those that seek it. About the
third hour let the bells be sounded in all the churches and let all,
throwing themselves prone on the ground, pour forth prayers for peace
because of their tribulation. Let confession and the viaticum be
♦ For a vivid description of the workings of an interdict see Hurter's Innocenz III.,
I, p. 348 ff . This is not an account of a real interdict, but a mosaic made by piec-
ing together the provisions of many censures.
tThis measure was proposed as a punishment for any infractions of the Peace of
God on the part of the nobles.
X It will be observed that the technical use of the word interdict had not yet been
adopted.
28 TRANSLATIONS AND REPRINTS.
allowed in the extremity of death. Let the altars in all the churches
be stripped, as on Good Friday ; and let the crucifixes and ornaments
be veiled as a sign of sorrow and mourning to all. Let each priest
celebrate the mass behind locked doors, and then only may the altars
be decorated, to be stripped again at the close of the service. Let
no one marry him a wife during the continuance of this excommunica-
tion. Let no one give another a kiss. Let no one in all Limoges
either of the clergy or of the laity, whether sojourners in the land or
travelers, eat meat or any other food except what is allowed in Lent.
Let no one of the clergy or of the laity have his hair cut or be shaved,
until such time as the barons, the leaders of the people, show obe-
dience to the holy council in all things. And if it shall be proved
that any one has violated this law let him not be received except after
fitting penance. For the excommunication of the bishops is to be
especially observed lest perchance the wrath of the Lord should fall
upon us and upon the people.
2. INTERDICT LAID IN NORMANDY IN 1 1 37.
Ordericus Vitalis, Hist. Eccl., Lib. XIII, c. 28, ed. Le Prevost, vol. V, p. 79. Latin.
This interdict was laid to " terrify and restrain the perverse and disorderly inhabit-
ants," who in the anarchy following the death of Henry I. ravaged and plundered
each other's land to an almost incredible extent.
And now a still more serious misfortune threatened Normandy with
many kinds of evil. In the bishopric of S^ez an anathema * was laid
on all the lands of William Talvas, and there was no longer heard the
sweet chant of divine service, a sound that calms and gladdens the
hearts of the faithful. The people were forbidden to enter the churches
for the purpose of worshipping God, and the doors were locked. The
music of the bells was silenced and the bodies of the dead lay un-
buried and putrifying, striking the beholders with fear and horror.
The pleasures of marriage were denied to those desiring them and the
solemn joys of the church services were no longer known. In the
diocese of Evreux also a like discipline was inflicted, which hardly
restrained by its terrors the disorders in the terrritory of Roger de
Toeni.
• In one MS. it is spoken of as papal anathema.
(NTERuICl 29
3. INTERDICT ON FRANCE IN 1200.
Martdne, Thesaurus Anecdot., IV, p. 147. Latin.
In 1 193 Philip Augustus married Ingeburg of Denmark, but divorced her on the
very day following the ceremony. Pope Innocent III. refused to sanction the decree,
and when, three years later, Philip married Agnes of Meran he found the whole power
of Rome directed against him. He refused to yield, and finally in 1200 the pope laid
all France under the interdict from January to September, when the king was forced
to give way. See Geraud, •' Ingeburge de Danemark," in Biblioth^que de I'Ecole
des Chartes, T. I., 2d series, pp. 1-27 and 93-118.
Let all the churches be closed ; let no one be admitted to them
except to baptize infants; let them not be otherwise opened except
for the purpose of lighting the lamps, or when the priest shall come for
the Eucharist and holy water for the use of the sick. We permit mass
to be celebrated once a week on Friday early in the morning to con-
secrate the Host for the use of the sick, but only one clerk is to be
admitted to assist the priest. Let the clergy preach on Sunday in the
vestibules of the churches, and in place of the mass let them dissemi-
nate the word of God. Let them recite the canonical hours outside
the churches, where the people do not hear them ; if they recite an
epistle or a gospel let them beware lest the laity hear them ; and let
them not permit the dead to be interred, nor their bodies to be placed
unburied in the cemeteries. Let them, moreover, say to the laity that
they sin and transgress grievously by burying bodies in the earth, even
in unconsecrated ground, for in so doing they arrogate to themselves
an office pertaining to others. Let them forbid their parishioners to
enter churches that may be open in the king's territory, and let them
not bless the wallets of pilgrims except outside the churches. Let
them not celebrate the offices in Passion week, but refrain even till
Easter day, and then let them celebrate in private, no one being
admitted except the assisting priest, as above directed ; let no one
communicate even at Easter, except he be sick and in danger of death.
During the same week, or on Palm Sunday, let them announce to their
parishioners that they may assemble on Easter morning before the
church and there have permission to eat flesh and consecrated bread.
Women are expressly forbidden to be admitted into the churches for
purification, but are to be warned to gather their neighbors together
on the day of purification and pray outside the church, nor may the
women who are to be purified enter even to raise their children to
the sacred font of baptism until they are admitted by the priest aftei
30 TRANSLATIONS AND REPRINTS
the expiration of the interdict. Let the priest confess all who desire
it in the portico of the church; if the church have no portico we
direct that in bad or rainy weather, and not otherwise, the nearest door
of the church may be opened and confessions heard on its threshold
(all being excluded except the one who is to confess) so that the priest
and the penitent can be heard by those who are outside the church.*
If, however, the weather be fair, let the confession be heard in front
of the closed doors. Let no vessels of holy water be placed outside
of the church, nor shall the priests carry them anywhere, for all the
sacraments of the church beyond these two which were reserved f are
absolutely prohibited. Extreme unction, which is a holy sacrament^
may not be given.
4. INTERDICT OF VENICE IN I309.
Baronius' Annales, sub an. 1309, § 6. Latin.
The Venetians and the church having both laid claim to Ferrara the former pro-
ceeded to make good their rights by occupying the city with an armed force. The
pope replied by laying an interdict on Venice and declaring all debts owing her citi-
zens to be forfeited. Other countries were invited to attack her commerce, and
Edward II. of England, with other rulers, took occasion to repudiate his Venetian
debts. Owing to the attacks on her trade and banking Venice was forced to yield
entirely k) the pope's demands.
And since a just quarrel had arisen because of such great sin on the
part of the doge of Venice and the Venetian senate he J smote them
with the anathema, especially mentioning by name Giovanni Soranza
who had wrested the domain of Ferrara away from the church, and
Vitali Michieli who was ruling Ferrara in the name of the republic,.
and ordered them to restore the rule of the Roman church. He de-
prived all the Venetian territory of the use of the sacraments and of
the rights of trade; he branded the magistrates with infamy and
pronounced them deprived of the benefits and privileges of the law;
and ordered ecclesiastics to leave the Venetian domains except such
as were needed to baptize infants and to receive the confessions of
the dying. Finally, if they persisted in their present course beyond
the time fixed for submission, he pronounced the doge deprived of his-
authority and all the property of the Venetians confiscated, and de-
* Geraud remarks that this was almost equivalent to a formal prohibition of con-
fession.
+ 1. e., infant baptism and the viaticum.
X Pope Clement V.
INTERDICT.
31
clared that the kings of Europe would be summoned to direct their
arms against them until they should restore Ferrara to the church.
5. INTERDICT OF UTRECHT IN 1 4 26.
Matthaeus' edition of the Cronica de Trajecto, 2d ed., V, p. 456. Latin.
The growing use of the interdict for purely political purposes is here shown, and
indicates the chief reason for the declining force of the censure.
Now it is remarkable that this decree should have been passed not-
withstanding the fact that the pope had deprived the city of the sacra-
ments and pronounced an interdict upon it on account of its having
received Rudolph ; especially if you consider that not only is nothing
severer than a papal interdict, but that nothing is likelier to stir up the
common people against their magistrates and superiors. For under
such circumstances the churches are closed, there are no divine services*
no chants are heard, nor is there mass, nor do the faithful assemble
together. There are no sacraments there, or confession, no baptism of
any except infants. Even burial is forbidden. All become the prey
of Satan. The credulous people are persuaded that it is in the pope's
power either to raise them to heaven or cast them down into hell.
And yet neither the city nor the clergy paid any attention to these
things. The pope's interdict was held in contempt and the clergy
continued unhesitatingly to conduct divine services, especially after
both the city and the nobles had promised to guard and protect them
against all, even against the pope.
6. THE doge's reply TO THE INTERDICT LAID ON VENICE IN 1606.
English translation found in Trollope's " Paul the Pope and Paul the Friar," pp.
381, 382.
Original Latin text in Magnum Bullarium Romanum, Tom, X (Ed. Luxemburgi,
1741), pp. 177, 178.
In his prolonged quarrel with Venice pope Paul V. attempted to compel the repeal
of two obnoxious laws by laying an interdict on the city, but this last serious attempt
of the papacy to enforce its decrees by a general censure broke down before the de-
termined opposition of the republic.
Leonardo Donato, by the Grace of God doge of Venice, etc., etc.,
to the most reverend, the patriarchs, archbishops and bishops of all
our Venetian domains, etc., etc., greeting :
It has come to our knowledge that on the 17 th of April last past,
by the order of the most holy father, Pope Paul V., there was published
and posted up in Rome a so-called brief, which was fulminated against
32 TRANSLATIONS AND REPRINTS.
US, our senate, and the whole of ou-r state ; and that one was addressed
to you, the tenor and contents whereof were similar to those of the
other. We therefore find ourselves constrained to preserve in peace
and tranquility the state which God has given us to rule; and, in
order to maintain our authority as a prince, who in temporal matters
recognizes no superior saving the Divine Majesty, we, by these our
public letters, do protest before the Lord God and the whole world
that we have not failed to use every possible means to make his Holi-
ness understand our most valid and irrefragable case ; first, by means
of our ambassador residing at the court of his Holiness; then, by
letters of ours in answer to briefs addressed to us by his Holiness ;
and, lastly, by a special ambassador sent to him to this effect. But
having found the ears of his Holiness closed against us and seeing
that the brief aforesaid is published contrary to all right reason and
contrary to the teaching of the divine Scriptures, the doctrine of the
holy fathers, and the sacred canons, to the prejudice of the secular
authority given us by God, and of the Hberty of our state, inasmuch
as it would cause disturbance in the quiet possessions which, by divine
Grace, under our government our faithful subjects hold of their prop-
erties, their honor and their lives, and occasion a most grave and
universal scandal throughout the state ; We do not hesitate to consider
the said brief not only as unsuitable and unjust, but as null and void
and of no worth or value whatever, and being thus invalid, vain, and
unlawfully fulminated, de facto nulla juris ordine servato^ we have
thought fit to use in resisting it the remedies adopted by our ancestors
and by other sovereign princes against such pontiffs as, in using the
power given them by God to the use of edifying, have overstepped
their due limits And we pray the Lord God to inspire him
[the pope] with a sense of the invalidity and nullity of his brief and
of the other acts committed against us, and that He, knowing the
justice of our cause, may give us strength to maintain our reverence
foi the holy apostolic see, whose most devoted servants we and our
predecessors, together with this republic, have been and ever shall be.
BIBLIOGRAPHICAL NOTE.
Lea, Henry C. : Superstition and Force : Essays on the Wager of Law—
the Wager of Battle— the Ordeal— Torture. Philadelphia, 4th ed., 1892.
The best concise treatment in any language of the methods of mediaeval legal pro-
cedure. The last edition of this work has been greatly enlarged by the author, who
BIBLIOGFLAPHIC NOTE.
33
has taken iMto account the researches of other modern scholars in this field, correcting
and supplementing their views from the wealth of his own learning. No student,
either of mediaeval life and thought or of legal history, can afford to be without this
book.
Patetta : Le Ordalie. Torino, 1890.
This is a full and judicious treatment of the subject of the judgments of God from
primitive Aryan times down, with a full citation of authorities.
Neilson: Trial by Combat. New York, 1891.
A popular but accurate discussion of the judicial duel in England and Scotland.
The author has drawn his account wholly from the original authorities, and has enliv-
ened the subject by many picturesque incidents from trials and combats.
Thayer, James Bradley: A Preliminary Treatise on Evidence at the Com-
mon Law, Part I., Development of Trial by Jury. Boston, 1896.
The first chapter of this very scholarly work is on Older Modes of Trial, and gives
a short but clear description of early English legal procedure.
Brunner, H. : Deutsche Rechtsgeschichte. Leipzig, 1892.
Two sections of this work contain much material relating to judgments of God, —
§ 23, Der Rechtsgang, and § 106, Die Gottesurteile. To the latter section is pre-
fixed a careful bibliography of works dealing with this subject.
Hinschius, Paul: Das Kirchenrecht der Katholiker und Protestanten in
Deutschland. Berlin, 1895.
The fifth volume of this the most satisfactory work on the ecclesiastical law of Ger-
many contains much material for the study of excommunication and interdict. Pages
1-51 and 493-563 relate directly to these subjects.
Lea, Henry C. : Studies in Church History. Philadelphia, 1883.
More than half of this book is taken up by an essay on excommunication, the most
complete and satisfactory treatment of the subject that we possess. In it the rise and
development of the censure are traced, the abuses that grew out of it are noted, and
its gradual decline is explained.
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