3. LAW OF FREDERIC II. ABOLISHING WAGER OF BATTLE IN SICILY. Const. Sicular., Lib. II, Tit. 33. H.-Bréholles: Op. cit., vol. IV, part I, p. 105. Latin.

We will that the single combat, or duel, as it is commonly called, all 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 permission 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 who 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

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 little 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. CYPRIAN ON THE NECESSITY OF MEMBERSHIP IN THE CHURCH.

De Unitate Ecclesiæ, § 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. Whosoever 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

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 IN 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 command 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 ways after being excommunicated, let him be bound and imprisoned by the count until we

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.

Confœderatio 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 excommunicates have persisted in their contumacy for more than six weeks, 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. 385, 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 perjury, 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

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 kingdom 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 provide 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 CHARTRES, 988 a. D.

Found in Giry, Manuel de Diplomatique, p. 564.

It was usual for medieval legal documents, and especially for deeds of gift, to contain clauses excommunicating latae sententiae 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 mediæval 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 Hurebecs, that have laid waste the vineyards of that place for