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
and criminal, of peculiarly knotty character, admitting of no other
apparent solution.[728] It seems, indeed, remarkable that he should
even have authorized personal combat between brothers, in criminal
accusations, only restricting them in civil suits to fighting by
champions,[729] when the German law of nearly the same period forbids
the duel, like marriage, between relations in the fifth degree, and
states that previously it had been prohibited to those connected in the
seventh degree.[730]
Even this qualified reform provoked determined opposition. Every motive
of pride and interest prompted resistance. The prejudices of birth, the
strength of the feudal principle, the force of chivalric superstition,
the pride of self-reliance gave keener edge to the apprehension of
losing an assured source of revenue. The right of granting the wager of
battle was one of those appertaining to the _hauts-justiciers_, and so
highly was it esteemed that paintings of champions fighting frequently
adorned their halls as emblems of their prerogatives; Loysel, indeed,
deduces from it a maxim, “The pillory, the gibbet, the iron collar, and
paintings of champions engaged, are marks of high jurisdiction.”[731]
This right had a considerable money value, for the seigneur at whose
court an appeal of battle was tried received from the defeated party
a fine of sixty livres if he was a gentleman, and sixty sous if a
roturier, besides a perquisite of the horses and arms employed, and
heavy mulcts for any delays which might be asked,[732] besides fines
from those who withdrew after the combat was decreed.[733] Nor was
this all, for during the centuries of its existence there had grown
and clustered around the custom an immeasurable mass of rights and
privileges which struggled lustily against destruction. Thus, hardly
had the ordonnance of prohibition been issued when, in 1260, a knight
named Mathieu le Voyer actually brought suit against the king for the
loss it inflicted upon him. He dolefully set forth that he enjoyed the
privilege of guarding the lists in all duels adjudged in the royal
court at Corbon, for which he was entitled to receive a fee of five
sous in each case; and, as his occupation thus was gone, he claimed
compensation, modestly suggesting that he be allowed the same tax
on all inquests held under the new law.[734] How closely all such
sources of revenue were watched is illustrated by a case occurring in
1286, when Philippe le Bel remitted the fines accruing to him from a
duel between two squires adjudged in the royal court of Tours. The
seneschal of Anjou and Touraine brought suit before the Parlement
of Paris to recover one-third of the amount, as he was entitled to
that proportion of all dues arising from combats held within his
jurisdiction, and he argued that the liberality of the king was not to
be exercised to his disadvantage. His claim was pronounced just, and a
verdict was rendered in his favor.[735]
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