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
Looking on the profession of a champion in this light, as that of a
witness swearing for hire, we can find a justification for the heavy
penalties to which he was subjected in case of defeat—penalties of
which the real purport presumably was to insure his fidelity to his
principal. Thus, in the Norman coutumier above referred to, in civil
suits as to disputed landed possessions, the champion swearing to
the truth of his principal’s claim was, if defeated, visited with a
heavy fine and was declared infamous, being thenceforth incapable of
appearing in court either as plaintiff or as witness, while the penalty
of the principal was merely the loss of the property in dispute;[595]
and a similar principle was recognized in the English law of the
period.[596] In criminal cases, from a very early period, while the
principal perhaps escaped with fine or imprisonment, the hired ruffian
was hanged, or at best lost a hand or foot, the immemorial punishment
for perjury;[597] while the laws of the Kingdom of Jerusalem prescribe
that in combats between champions, the defeated one shall be promptly
hanged, whether dead or alive.[598] The Assises d’Antioche are somewhat
more reasonable, for they provide merely that the vanquished champion
and his principal shall suffer the same penalty, whether simply a
forfeiture of civil rights in civil cases, or hanging as in accusations
of homicide or other serious crime.[599] That, in the later periods,
at least, the object of this severity was to prevent the champion from
betraying his employer’s cause was freely admitted. Beaumanoir thus
defends it on the ground of the liability of champions to be bought
over by the adverse party, which rendered the gentle stimulus of
prospective mutilation necessary to prevent them from being purchased
by the adversary;[600] and it is probably owing to this that the full
severity of the punishment is shown to be still in existence by a
charter of so late a date as 1372, when the use of the judicial duel
had fully entered on its decline.[601] In the same spirit, the Emperor
Frederic II. prohibited champions from bargaining with each other not
to use teeth and hands. He commanded them to inflict all the injury
possible on their adversaries, and decreed that they should, in case of
defeat, share the punishment incurred by the principal, if the judge of
the combat should consider that through cowardice or treachery they had
not conducted the duel with proper energy and perseverance.[602]
Public-domain text, read in full here on John Shaqi.
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