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 its endeavors to suppress the judicial duel the Church had to weigh
opposing difficulties. It could, as we have seen (p. 156), enjoin its
members from taking part in such combats and from adjudging them in
their jurisdictions; it could decree that priests became “irregular” if
death ensued in duels where they gave the benediction, or perhaps even
where they had only brought relics on which the combatants took the
oaths. But over the secular courts it had only the power of persuasion,
or at most of moral coercion, and among the canon doctors there was
considerable discussion as to the extent to which it could pronounce
participation in the duel a mortal sin, entailing excommunication and
denial of the rites of sepulture. When a man sought the duel, when he
demanded it of the judge and provoked his adversary to it, he could be
pronounced guilty of homicide if death ensued. It was otherwise where
an innocent man was accused of a mortal crime and would be hanged if
he refused the duel adjudged to him by court. It was argued that the
Church was a harsh mother if she forced her children thus to submit
to death and infamy for a scruple of recent origin, raised merely by
papal command, though the more rigid casuists insisted even on this.
All agreed, however, that in civil cases a man ought rather to undergo
the loss of his property than to imperil his soul and disobey the
Church.[711]
* * * * *
Perhaps the most powerful cause at work was the revival of the Roman
jurisprudence, which in the thirteenth century commenced to undermine
all the institutions of feudalism. Its theory of royal supremacy was
most agreeable to sovereigns whose authority over powerful vassals
was scarcely more than nominal; its perfection of equity between
man and man could not fail to render it enticing to clear-minded
jurists, wearied with the complicated and fantastic privileges of
ecclesiastical, feudal, and customary law. Thus recommended, its
progress was rapid. Monarchs lost no opportunity of inculcating respect
for that which served their purpose so well, and the civil lawyers,
who were their most useful instruments, speedily rose to be a power in
the state. Of course the struggle was long, for feudalism had arisen
from the necessities of the age, and a system on which were based all
the existing institutions of Europe could only be attacked in detail,
and could only be destroyed when the advance of civilization and the
general diffusion of enlightenment had finally rendered it obsolete.
The French Revolution was the final battle-field, and that terrible
upheaval was requisite to obliterate a form of society whose existence
had numbered nine hundred years.
Public-domain text, read in full here on John Shaqi.
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