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 Spain the influence of Roman institutions, transmitted through
the Wisigothic laws, had allowed to the judicial duel less foothold
than in other mediæval lands, and the process of suppressing it began
early. In Aragon the chivalrous Jayme I., _el Conquistador_, in the
franchises granted to Majorca, on its conquest in 1230, prohibited
the judicial combat in both civil and criminal cases.[718] Within
forty years from this, Alfonso the Wise of Castile issued the code
generally known as Las Siete Partidas. In this he evidently desired
to curb the practice as far as possible, stigmatizing it as a custom
peculiar to the military class (_por lid de caballeros ò de peones_),
and as reprehensible both as a tempting of God and as a source of
perpetual injustice.[719] Accordingly, he subjected it to very
important limitations. The wager of battle could only be granted by
the king himself; it could only take place between gentlemen, and in
personal actions alone which savored of treachery, such as murder,
blows, or other dishonor, inflicted without warning or by surprise.
Offences committed against property, burning, forcible seizure, and
other wrongs, even without defiance, were specifically declared not
subject to its decision, the body of the plaintiff being its only
recognized justification.[720] Even in this limited sphere, the consent
of both parties was requisite, for the appellant could prosecute in
the ordinary legal manner, and the defendant, if challenged to battle,
could elect to have the case tried by witnesses or inquest, nor could
the king himself refuse him the right to do so.[721] When to this
is added that a preliminary trial was requisite to decide whether
the alleged offence was treacherous in its character or not, it will
be seen that the combat was hedged around with such difficulties
as rendered its presence on the statute book scarcely more than an
unmeaning concession to popular prejudice; and if anything were wanting
to prove the utter contempt of the legislator for the decisions of the
battle-trial, it is to be found in the regulation that if the accused
was killed on the field, without confessing the imputed crime, he was
to be pronounced innocent, as one who had fallen in vindicating the
truth.[722] The same desire to restrict the duel within the narrowest
possible limits is shown in the rules concerning the employment of
champions, which have been already alluded to. Although the Partidas
as a scheme of legislation was not confirmed until the cortes of 1348
these provisions were lasting and produced the effect designed. It is
true that in 1342 we hear of a combat ordered by Alfonso XI. between
Pay Rodriguez de Ambia and Ruy Paez de Biedma, who mutually accused
each other of treason. It was fought before the king and lasted for
three days without either party obtaining the victory, till, on the
evening of the third day, the king entered the lists and pacified
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