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
similar charge, made good her defence by dragging, with a slender cord,
a ship against the rapid current of the Tiber after it had run aground
and resisted all efforts to move it—and this with an invocation to the
goddess to absolve or condemn her, as she was innocent or guilty, which
gives to the affair a marked resemblance to an established form of
judicial ordeal.[866] Occasional instances such as these had, however,
no influence on the forms and principles of Roman jurisprudence, which
was based on reason and not on superstition. With the exception of the
use of torture, as we shall see hereafter, the accused was not required
to exculpate himself. He was presumed to be innocent, and the burden
of proof lay not on him but on the prosecutor. The maxim of the civil
law—“Accusatore non probante, reus absolvitur”—is entirely incompatible
with the whole theory upon which the system of ordeals is based.[867]
* * * * *
The barbarian Aryans who occupied Europe brought with them the
ancestral beliefs in a form more easily recognizable than the remnants
which survived through Hellenic and Italiote civilization. The Feini,
or Irish Celts, boasted that their ancient Brehons, or judges, were
warned by supernatural manifestations as to the equity of the judgments
which they rendered. Sometimes these took the shape of blotches on
their cheeks when they pronounced false judgments. Sen Mac Aige was
subject to these marks, but with him they disappeared when he decided
righteously, while Sencha Mac Aillila was less fortunate, for he
was visited with three permanent blotches for each mistake. Fachtna
received the surname of Tulbrethach because, whenever he delivered
a false judgment, “if in the time of fruit, all the fruit in the
territory in which it happened fell off in one night; if in time of
milk, the cows refused their calves; but if he passed a true judgment,
the fruit was perfect on the trees.” Morann never pronounced a judgment
without wearing around his neck a chain, which tightened upon him if
the judgment was false, but expanded down upon him if it were true.
These quaint legends have their interest as manifesting the importance
attached by the ancient Irish to the impartial administration of
absolute justice, and the belief entertained that a supernatural power
was ever on the watch over the tribunals, but these manifestations were
too late to arrest injustice, as they did not occur until after it was
committed. The Feini therefore did not abandon the ancient resource
of the ordeal, as is shown by a provision in the Senchus Mor, which
grants a delay of ten days to a man obliged to undergo the test of
boiling water.[868] The Celts of the Rhinelands also had a local custom
of determining the legitimacy of children by an ordeal of the purest
chance, which became a common-place of Roman rhetoric, and is thus
described in the Anthology:—
Θαρσαλέοι Κελτοὶ ποταμῷ ζηλήμονι Ρήνω χ. τ. λ.
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