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
As the Barbarians established themselves on the ruins of the Roman
Empire and embraced Christianity they, with one exception, cultivated
the institution of the ordeal with increased ardor. This exception
is found in the Gothic nations, and is ascribable, as we have seen
when treating of the judicial combat, to the influence of the Roman
customs and laws which they adopted. For nearly two centuries after
their settlement, there is no allusion in their body of laws to any
form of ordeal. It was not until 693, long after the destruction of
their supremacy in the south of France, and but little prior to their
overthrow in Spain by the Saracens, that King Egiza, with the sanction
of a Council of Toledo, issued an edict commanding the employment of
the _æneum_ or ordeal of boiling water.[875]
Various causes were at work among the other tribes to stimulate the
favor with which the ordeal was regarded. As respects the wager of
battle I have already traced its career as a peculiarly European form
of the Judgment of God, which was fostered by the advantage which it
gave, in the times of nascent feudalism, to the bold and reckless. With
regard to the other forms, one reason for their increased prevalence is
doubtless to be found in the universal principle of the Barbarians, in
their successive settlements, to allow all races to retain their own
jurisprudence, however much individuals might be intermingled, socially
and politically. The confusion to which this gave birth is well set
forth by St. Agobard, when he remarks that frequently five men shall be
found in close companionship, each one owning obedience to a different
law. He also states that under the Burgundian rules of procedure, no
one was allowed to bear witness against a man of different race.[876]
Under these circumstances, in a large proportion of cases there could
be no legal evidence attainable, and recourse was had of necessity to
the Judgment of God. Even when this rule was not in force, a man who
appealed to Heaven against the testimony of a witness of different
origin would be apt to find the court disposed to grant his request. If
the judge, moreover, was a compatriot of one of the pleaders, the other
would naturally distrust his impartiality, and would prefer to have
the case decided by the Omniscient whose direct interposition he was
taught to regard as undoubted. That the assumed fairness of the ordeal
was highly prized under such circumstances we have evidence in the
provisions of a treaty between the Welsh and the Saxons, about the year
1000, according to which all questions between individuals of the two
races were to be settled in this manner, in the absence of a special
agreement between the parties.[877]
Public-domain text, read in full here on John Shaqi.
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