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
there are still faint traces to be found of the survival of the idea of
the judgment of God.[787]
In Hungary, it was not until 1486 that any attempt was made to restrict
the judicial duel. In that year Matthias Corvinus prohibited it in
cases where direct testimony was procurable: where such evidence
was unattainable, he still permitted it, both in civil and criminal
matters.[788] In 1492 Vladislas II. repeated this prohibition, alleging
as his reason for the restriction the almost universal employment of
champions who sometimes sold out their principals. The terms of the
decree show that previously its use was general, though it is declared
to be a custom unknown elsewhere.[789]
In Flanders, it is somewhat remarkable that the duel should have
lingered until late in the sixteenth century, although, as we have seen
above, the commercial spirit of that region had sought its abrogation
at a very early period, and had been seconded by the efforts of
Philippe le Bon in the fifteenth century. Damhouder, writing about
the middle of the sixteenth century, states that it was still legal
in matters of public concern, and even his severe training as a
civil lawyer cannot prevent his declaring it to be laudable in such
affairs.[790] Indeed, when the Council of Trent, in 1563, stigmatized
the duel as the work of the devil and prohibited all potentates from
granting it under pain of excommunication and forfeiture of all feudal
possessions,[791] the state Council of Flanders, in their report to the
Duchess of Parma on the reception of the Council, took exception to
this canon, and decided that the ruler ought not to be deprived of the
power of ordering the combat.[792] In this view, the Council of Namur
agreed.[793]
In Germany, in spite of the imperial legislation referred to above (p.
212), feudal influences were too strong to permit an early abrogation
of the custom. Throughout the fifteenth century the wager of battle
continued to flourish, and MSS. of the period give full directions as
to the details of the various procedures for patricians and plebeians.
The sixteenth century saw its wane, though it kept its place in the
statute books, and _Fechtbücher_ of 1543 and 1556 describe fully
the use of the club and the knife. Yet when in 1535 Friedrich von
Schwartzenberg demanded a judicial duel to settle a suit with Ludwig
von Hutten, the latter contemptuously replied that such things might
be permitted in the times of Goliath and Dietrich of Bern, but that
now they were not in accordance with law, right, or custom, and von
Schwartzenberg was obliged to settle the case in more peaceful fashion.
Still, occasional instances of its use are said to have occurred
until the close of the century,[794] and as late as 1607, Henry, Duke
of Lorraine, procured from the Emperor Rodolph II. the confirmation
of a privilege which he claimed as ancestral that all combats
occurring between the Rhine and the Meuse should be fought out in his
presence.[795]
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account