Legal antiquities : $b A collection of essays upon ancient laws and customsWhite, Edward J. (Edward Joseph)
History
Legal antiquities : $b A collection of essays upon ancient laws and customs
White, Edward J. (Edward Joseph)
Criminal law -- History; Law -- History; Law, Ancient; Punishment -- History
Little, if any good, could result from a discussion of the power of a
Court to order submission to such barbarous treatment, for the courts
assumed the power and it was backed-up with the influence of the Church
and the authority of the King. The citizens could do little else than
submit to such a formidable alliance, which proceeded in the name of the
Majesty of the Law and the Solemn Assurance of the Church, for there
were no constitutions to protect the citizens from cruel or unusual
punishments; might was right when used against the weak and oppressed
and the power of the Church and State was too much for any individual to
overcome. Society was not organized, as at present, to protect the rights
of the individual, but the Church and State were all-powerful and their
orders had the force to overcome all private resistance.
As shown, in the beginning, the institution known as trial by ordeal,
like many other of the cruel customs of the ancient world, had the Mosaic
law as its foundation and the Church’s approval, in the construction of
the foundation and the recognition of the whole institution. The Church
was not only ready to accept the barbarous practices of its pagan
converts but itself gave them fresh claim to confidence, by throwing
around them the solemn ceremonies of its own approval. The ordeals were
all conducted with the aid of the priests, and prelates in all the
Catholic countries were everywhere granting special charters authorizing
the privilege of trials by ordeals.[79]
But as the Church was partly responsible for the practice of trials by
ordeal, because the Churchmen were but human and, as such, entered into
the manners and customs of the people of the period when they lived, the
Church had no inconsequential part in abolishing this barbarous custom,
for ever since the sixth century and perhaps from the beginning of the
custom, eminent Churchmen had opposed the institution as a pagan custom,
not authorized by the teachings of the ancient Jews or the religion of
Christ, and finally, the protests of these wise Churchmen culminated in
the suppression of this old test, and in 1215 the Lateran Council forbade
the clergy from afterward taking part in the ceremony known as trial by
ordeal.[80] And Henry III., following the lead made by the Church, “Seeing
that the judgment of fire and water is forbidden by the Church of Rome,”
directed his judges, starting on their circuits, to adopt other methods
of proof and to forever discard this brutal test.[81]
If the Church was remiss in its duty to oppose the ordeal, therefore,
in the beginning, it brought about the repression of the practice, and
is, at least, entitled to the benefit of the approval of the friends of
humanity for this tardy beneficence, upon its part.
Public-domain text, read in full here on John Shaqi.
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