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
In England, where, as we have seen, the identity of champions and
witnesses was clearly asserted, there were prolonged efforts to
suppress their hiring. In 1150, Henry II. strictly prohibited the
wager of battle with hired champions in his Norman territories;[625]
although the Norman custom not only admitted them but required the
principal to pay the full sum agreed upon to his champion whether
defeated or not.[626] We learn from Glanville that a champion suspected
of serving for money might be objected to by the opposite party,
whence arose a secondary combat to determine his fitness for the
primary one.[627] Bracton, moreover, develops this by asserting as
a rule that a witness suspected of being a hired champion was not
allowed to proceed to the combat, but was tried for the attempt by a
jury, and if convicted suffered the penalty of perjury in the loss of
a hand or a foot,[628] and in another passage he states that hired
champions were not permitted.[629] How far these rules were enforced
it would now be difficult to determine. Records show that a frequent
defence against an adverse witness was an offer to prove that he was
a hired champion.[630] On the other hand, the payment of champions
was frequent and no concealment seems to have been thought necessary
concerning it. Towards the close of the twelfth century, by a charter
Stephen de Nerbana grants two _virgata_ of land to William son of
Ralph “propter duellum quod fecit pro me.”[631] In another charter of
Bracton’s date John “quondam porcarius de Coldingham” grants to the
Priory of Coldingham a tract of land which he had received from Adam
de Riston in payment for victoriously fighting a duel for him.[632]
Even more significant are the formal agreements with champions, such as
that by which in 1276 Bishop Swinefeld declares to all men that he has
appointed Thomas of Brydges his champion, on a salary of 6s. 8d. per
annum, so long as he shall be able to fight, with extra compensation
in case he is called upon to perform his functions.[633] Eventually,
as we have seen (p. 183), in civil cases, both parties were compelled
by law to employ champions, which presupposes, as a matter of course,
that in a great majority of instances the substitutes must have been
hired.[634] In criminal cases there seems to have been a compromise;
in felonies, the defendant was obliged to appear personally, while in
accusations of less moment he was at liberty to put forward a witness
as champion;[635] and when the appellant, from sex or other disability,
or the defendant from age, was unable to undergo the combat personally,
it was forbidden, and the case was decided by a jury.[636] By the
Scottish law of the thirteenth century, it is evident that champions
were not allowed in any case, since those disabled by age or wounds
were forced to undergo the ordeal in order to escape the duel.[637]
This strictness became relaxed in time, though the practice of
Public-domain text, read in full here on John Shaqi.
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