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
At first, its revival promised to be but temporary. Only a few years
after its introduction it was condemned by Louis le Débonnaire at the
Council of Worms, in 829; its use was strictly prohibited, and the
_missi dominici_ were instructed to see that the order was carried into
effect, regulations which were repeated by the Emperor Lothair, son of
Louis.[1011] These interdictions were of little avail. The ordeal found
favor with popular superstition, and Hincmar contents himself with
remarking that the imperial prohibition was not confirmed by the canons
of authoritative councils.[1012] The trial by cold water spread rapidly
throughout Europe, and by all the continental races it was placed on an
equal footing with the other forms of ordeal. Among the Anglo-Saxons,
indeed, its employment has been called in question by some modern
writers; but the Dooms of Ethelstan sufficiently manifest its existence
in England before the Conquest, while as late as the close of the
twelfth century its use would seem to have been almost universal. The
assizes of Clarendon in 1166, confirmed at Northampton in 1176, direct
an inquest to be held in each shire, and all who are indicted for
murder, robbery, harboring of malefactors, and other felonies are to
be at once, without further trial, passed through the water ordeal to
determine their guilt or innocence.[1013]
As we have seen in the case of the iron ordeal, those of water, both
cold and hot, were variously described as patrician or plebeian in
different times and places. Thus Hincmar, in the ninth century,
alludes to the water ordeals as applicable to persons of servile
condition;[1014] a constitution of the Emperor St. Henry II., about
A. D. 1000, in the Lombard law, has a similar bearing;[1015] in the
eleventh century an Alsatian document,[1016] in the twelfth Glanville’s
treatise on the laws of England,[1017] and in the thirteenth the laws
of Scotland[1018] all assume the same position. This, however, was an
innovation; for in the earliest codes there was no such distinction,
a provision in the Salic law prescribing the _æneum_, or hot-water
ordeal, even for the Antrustions, who constituted the most favored
class in the state.[1019] Nor even in later times was the rule by any
means absolute. In the tenth century, Sanche, Duke of Gascony, desirous
of founding the monastery of Saint Sever, claimed some land which
was necessary for the purpose, and being resisted by the possessor,
the title was decided by reference to the cold-water ordeal.[1020]
In 1027, Welf II., Count of Altorf, ancestor of the great houses of
Guelf in Italy and England, having taken part in the revolt of Conrad
the Younger and Ernest of Suabia, was forced by the Emperor Conrad
the Salic to prove his innocence in this manner.[1021] About the same
period Othlonus relates an incident in which a man of noble birth
accused of theft submitted himself to the cold-water ordeal as a matter
Public-domain text, read in full here on John Shaqi.
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