Superstition and Force: Essays on the Wager of Law, the Wager of Battle, the Ordeal, TortureLea, Henry Charles
History
Superstition and Force: Essays on the Wager of Law, the Wager of Battle, the Ordeal, Torture
Lea, Henry Charles
Ordeal; Torture; Wager of battle; Wager of law
In the more developed code of Vishnu we find the ordeal system
exceedingly complicated, pervading every branch of jurisprudence and
only limited by the amount at stake or the character or caste of the
defendant.[858] Yet Hindu antiquity is so remote and there have been
so many schools of teachers that the custom apparently did not prevail
in all times and places. One of the most ancient books of law is the
Dharmasastra of Gautama, who says nothing of ordeals and relies for
proof wholly on the evidence of witnesses, adding the very relaxed rule
that “No guilt is incurred in giving false evidence in case the life of
a man depends thereon.”[859]
This, however, is exceptional, and the ordeal maintained its existence
from the most ancient periods to modern times. Under the name of
_purrikeh_, or _parikyah_, it is prescribed in the native Hindu law
in all cases, civil and criminal, which cannot be determined by
written or oral evidence, or by oath, and is sometimes incumbent upon
the plaintiff and sometimes upon the defendant. In its various forms
it bears so marked a resemblance to the judgments of God current in
mediæval Europe that the further consideration of its use in India may
be more conveniently deferred till we come to discuss its varieties in
detail, except to add that in Hindu, as in Christian courts, it has
always been a religious as well as a judicial ceremony, conducted in
the presence of Brahmans, and with the use of invocations to the higher
powers.[860]
* * * * *
Buddhism naturally followed the legal institutions which it found
established, and accepted the ordeal, though it could scarce form a
logical incident in the great system of transmigration whereby the good
and evil of the universe distributed itself automatically, without
supervision from the thirty-two heavens. We have seen the influence
which Buddhism exercised on Chinese materialism, and Tibetan Shamanism
could hardly expect to escape it. Thus in Tibet we find the hot water
ordeal assume a form which is literally even-handed, and which, if
generally enforced, must exert a happily repressive influence over
litigation. Both plaintiff and defendant thrust their arms into a
caldron of boiling water containing a black and a white stone, the
verdict being in favor of him who brings up the white.[861]
* * * * *
The Hellenic tribes had already, in prehistoric times, reached a point
of mental development superior to the grosser forms of the ordeal as a
recognized instrument of judicial investigation. These were replaced,
as we have seen in Egypt, by habitual resort to oracles, but that some
recollection of the ancestral practices was handed down to later ages
is shown by the allusions in the Antigone of Sophocles, when the guards
protest to Creon their innocence as to the burial of Polynices, and
offer to prove it by the ordeal:—
Public-domain text, read in full here on John Shaqi.
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