The subject of judicial ordeals has come up a number of times on this blog, most recently in a post about Jean Bodin’s sixteenth century handbook on witch-hunting. Judicial ordeals are a category of tests that courts and officials have applied throughout history (and also recently!) that purport to invoke supernatural agencies to reveal the truth or falsehood of the claims of parties to a legal dispute. In this post, I want to highlight Friedrich Majer (1772-1818), a little-known 18th century author whose works appear in the Law Library’s collections and who wrote a very early, fascinating history of judicial ordeals in Germany, a book that places ordeals – in a certain way – at the center of German political history in the early Middle Ages.
The son of a pastor, Majer was born in 1772 in Unterkoskau in Thuringia. In 1791, he studied law in Jena, and later worked in legal practice in Göttingen. During private studies in Jena and Weimar, he developed a friendship with the immensely influential author and philosopher Johann Gottfried Herder, as well as a number of other well-known intellectuals of the time. Herder took him on as a student, and under his influence, Majer adopted some of the major themes that preoccupied Herder in his thought and writing. Among these was the organic conception of the nation; the idea that a nation has a unique set of traits and a particular spirit that characterizes it and drives its historical and cultural development. (Barnard, p. 72-87.) Majer’s fascination with this idea seems to have led him to write at least two book length projects on the history of the German nation among other works on history, mythology and folklore.
The first of these books is the subject of this post, Geschichte der Ordialien, insbesondere der gerichtlichen Zweikämpfe in Deutschland (Jena, 1795), (or, The History of Ordeals, especially Judicial Combat in Germany). In that book, Majer details the history of a variety of forms of judicial ordeals that were practiced in German-speaking lands from Late Antiquity, the earliest period for which there is any textual documentation of legal practices in those regions, until the 18th century. From a bibliographic point of view, the essays in the book are invaluable, because Majer takes the time to include, for each form of ordeal, a list of the scholarship that was available in print in his day. These range from treatises to dissertations to pamphlets that were printed over the course of more than three centuries, all collecting data about the various judicial ordeals practiced throughout medieval Germany.
Majer discusses a wide range of ordeals, all of which were held to render a verdict according to the judgment of God. Among them is the ordeal of cold water, which is discussed in detail here. The ordeal of hot water also makes an appearance, in which the accused plunges his arm down to the elbow in a vessel of boiling water, often to retrieve a stone from the bottom of the vessel. A burnt arm indicates the guilt of the accused. (Majer, p. 38.) Majer discusses the fire test, which is the burning of the hand of the accused with a hot iron. If the wound becomes septic, the accused is held to be guilty. (Majer, p. 47.) He also describes three distinctly religious ordeals. One is the cross test, which takes several forms, some of which amount to making an oath before a cross or merely making an oath and waiting for a sign from God. Another version involves standing on a cross and holding the arms out in a cross shape for the duration of the recitation of a Mass. If the accused allows the arm to fall even slightly, this is a sign of guilt. (Majer, p. 58.) He discusses the purgatio per sacram Eucharistam (the test of the holy Eucharist), in which the accused is adjured to confess, and is then given a communion wafer to eat. If the wafer becomes stuck in his throat, the accused was guilty. (Majer, p. 71.) This test is substantially similar to the test of the consecrated bread, in which a piece of bread is offered to the accused in near identical proceedings. (Majer, p. 67.) The most gruesome of the tests mentioned is the ordeal of the coffin, in which a person accused of murder is brought before the corpse of the victim; in some cases, the accused is asked to touch the corpse. If the corpse bleeds in the presence of the accused, he is held to be guilty. (Majer, p. 81.) For each of these, he cites early appearances in Germanic law and instances of their use in historical sources.
The focus of the book, however, which takes up more than half the length of the text, is Majer’s treatment of judicial combat. Judicial combat, which is discussed in the context of English history in this post, is the use of armed combat to determine the truth of the claims advanced by the participants in a legal dispute. Victory determines the truth of the claims asserted by the victorious party. For Majer, judicial combat held a central, and largely harmful, role in the future development of German culture. Majer claims German-speaking lands were unique among the people of antiquity to practice judicial combat, and that the practice spread outward from them to the rest of the people of Europe. (Majer, p. 24). As a cultural form, it was a natural expression of the character of the German people, in the organic sense of a people that Majer shared with Herder (see above). Germans, he said, were a fierce, free and warlike people. Their entire culture, from religion, to recreation, to self-government, was tied up with the use of arms and armed combat. Trial by combat was in complete harmony with these traits of the German people. (Majer, pp. 23, 134-140.)
Majer hints at a semi-mythic history in which the arrival of trial by combat in Germany found a kind of harmony with this martial tendency in the ancient German tribes. (Majer, pp. 25, 134-140, 142-145.) Various traditions of militancy, blood vengeance (Blutrache) and extra-judicial self-help, as well as superstitious credulity, created over time a society that was in effect an amplification of trial by combat on the collective level. (Majer, p. 134-140.) Petty warlords arose who manipulated citizens into giving up their freedom to serve them as soldiers in private wars. In the forward of a later book, he relates how endemic warfare, political strife, and disunity characterized the history of Germany, apart from brief reprieves, throughout the Middle Ages. In one guise, chivalry, the ethos of knightly honor, was a tool of this chaotic social order, casting private violence in terms of valor and service. Majer described this situation as Faustrecht, which literally means “law of the fist,” and can probably be rendered better in English as “the law of the jungle,” or “might makes right.” Majer’s interest in this interpretation of German history led him to write another work, which he somewhat ironically titled Allgemeine Geschichte des Faustrechts in Deutschland (Berlin, 1799) (A General History of Law of the Jungle in Germany). In that book, he narrates the history of these “private” wars throughout the first millennium of the common era.
Majer described the gradual decline of judicial combat in modern times as a reflection of the changing character of the German nation rather than as a result of the legislation of states. (Majer, p. 316.) The philosopher Arthur Schopenhauer (1788-1860) once reflected on the persistence of the ethos of knightly honor, which meant for him people who were, in the 19th century, still disposed to engage in dueling, or a private act of combat to settle a matter of slighted respect. He found this whole set of concerns infantile and absurd, and echoed Majer’s point that judicial combat was limited to European peoples of the Middle Ages:
“The unprejudiced reader will see at once that such a strange, savage and ridiculous code of honor as this has no foundation in human nature, nor any warrant in a healthy view of human affairs. The extremely narrow sphere of its operation serves only to intensify the feeling, which is exclusively confined to Europe since the Middle Age, and then only to the upper classes, officers and soldiers, and people who imitate them. Neither Greeks nor Romans knew anything of this code of honor or of its principles; nor the highly civilized nations of Asia, ancient or modern.” (Schopenhauer, p. 53.)
The reference to “highly civilized nations of Asia” reflects an interest that Schopenhauer held in common with Majer. Following prompting by Herder, Majer took up the study of the culture and religion of India. (Wilson, p. 42.) This became his major intellectual preoccupation, with most of the books and articles that he published in his brief lifetime focusing on comparative mythology, Indology and Indian religion. He eventually became the most important German purveyor of interest in India while he was active. (Wilson, p. 42.) Among his accomplishments in this field were translations of important Hindu texts into German. These included the Moha Mudgara, and the Gita-Govinda of Jayadeva. Foremost, however, was his translation of the Bhagavad-Gita, which was the Gita’s first translation into German. Majer, who was not yet able to use Sanskrit sources, translated all of the foregoing from English translations, two of which were prepared by the British orientalist Sir William Jones. (Wilson, p. 46.) He relied on Charles Wilkins’ translation of the Bhagavad-Gita. (Wilson, p. 46.) Schopenhauer met Majer, who was 17 years his senior, in Weimar in the winter of 1813, when Majer was already several years into his study of Indian literature. (Wilson, p. 42.) Schopenhauer, whose work decisively influenced such important figures as Richard Wagner, Friedrich Nietzsche, Thomas Mann and many others, including a slew of modern physicists and psychologists, later remarked that this meeting introduced him to the religions of India, an event which had tremendous impact on the direction of his thinking. (Wilson, p. 40.)
Willson, Leslie A. “Friedrich Majer: Romantic Indologist,” Texas Studies in Literature and Language, Vol. 3, No. 1 (Spring 1961), pp. 40-49.
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