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 1409, the battle trial was materially limited by an ordonnance of
Charles VI. prohibiting its employment except when specially granted
by the king or the Parlement;[770] and though the latter body may
never have exercised the privilege thus conferred upon it, the king
occasionally did, as we find him during the same year presiding at a
judicial duel between Guillaume Bariller, a Breton knight, and John
Carrington, an Englishman.[771] The English occupation of France, under
Henry V. and the Regent Bedford, revived the practice, and removed for
a time the obstacles to its employment. Nicholas Upton, writing in the
middle of the fifteenth century, repeatedly alludes to the numerous
cases in which he assisted as officer of the Earl of Salisbury,
Lieutenant of the King of England; and in his chapters devoted to
defining the different species of duel he betrays a singular confusion
between the modern ideas of reparation of honor and the original object
of judicial investigation, thus fairly illustrating the transitional
character of the period.[772]
It was about this time that Philippe le Bon, Duke of Burgundy, formally
abolished the wager of battle, as far as lay in his power, throughout
the extensive dominions of which he was sovereign, and in the Coutumier
of Burgundy, as revised by him in 1459, there is no trace of it to be
found. The code in force in Britanny until 1539 permitted it in cases
of contested estates, and of treason, theft, and perjury—the latter,
as usual, extending it over a considerable range of civil actions,
while the careful particularization of details by the code shows that
it was not merely a judicial antiquity.[773] In Normandy, the legal
existence of the judicial duel was even more prolonged, for it was not
until the revision of the coutumier in 1583, under Henry III., that
the privilege of deciding in this way numerous cases, both civil and
criminal, was formally abolished.[774] Still, it may be assumed that,
practically, the custom had long been obsolete, though the tardy
process of revising the local customs allowed it to remain upon the
statute book to so late a date. The fierce mountaineers of remote Béarn
clung to it more obstinately, and in the last revision of their code,
in 1552, which remained unaltered until 1789, it retains its place as a
legitimate means of proof, in default of other testimony, with a heavy
penalty on the party who did not appear upon the field at the appointed
time.[775]
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