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
Parlement appear never to have been divested of the right to adjudge
the wager of battle.
* * * * *
In Italy many causes conspired to lead to the abrogation of the
judicial duel. On the one hand there were the prescriptions of the
popes, and on the other the spirit of scepticism fostered by the
example of Frederic II. The influence of the resuscitated Roman law was
early felt and its principles were diffused by the illustrious jurists
who rendered the Italian schools famous. Burgher life, moreover, was
precociously developed in the social and political organization,
and as the imperial influence diminished with the fall of the House
of Hohenstaufen, the cities assumed self-government and fashioned
their local legislation after their own ideals. The judgments of God
were not indigenous in Italy; they were not ancestral customs rooted
in the prehistoric past, but were foreign devices introduced by
conquerors—first by the Lombards and then by the Othos. There were
thus many reasons why the trial by combat should disappear early from
the Italian statute books. There is no trace of it in the elaborate
criminal code of Milan compiled in 1338, nor in that of Piacenza
somewhat later; in fact, it was no longer needed, for the inquisitional
process was in full operation and in doubtful cases the judge had all
the resources of torture at his disposal.[783]
Although by the middle of the fourteenth century it had thus
disappeared from the written law, the rulers retained the right to
grant it in special cases, and it thus continued in existence as a
lawful though extra-legal mode of settling disputed cases. Where
suzerains were so numerous there was thus ample opportunity for
belligerent pleaders to gratify their desires. Even as late as 1507
Giovanni Paolo Baglioni, lord of Spello (a village in the Duchy of
Spoleto, near Foligno), granted a licence for a month to Giovanni
Batta Gaddi and Raffaello Altoviti to settle their suits by fighting
within his domain with three comrades.[784] Two years after this,
Julius II., in issuing a constitution directed against duels of honor,
took occasion also to include in his prohibition all such _purgationes
vulgares_, even though permitted by the laws; the combatants were
ordered, in all the States of the Church, to be arrested and punished
for homicide or maiming according to the common law.[785] In 1519 Leo
X. reissued this bull with vastly sharper penalties on all concerned,
but in his additions to it he seems merely to have in mind the duel
of honor, which was habitually conducted in public, in lists prepared
for the purpose, and in presence of the prince or noble who had
granted licence for it.[786] The legal combat may be considered to
have virtually disappeared, but the duel of honor which succeeded it
inherited some of its sanctions, and in the learned treatises on the
subject which appeared during the first half of the sixteenth century
Public-domain text, read in full here on John Shaqi.
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