Superstition and Force: Essays on the Wager of Law, the Wager of Battle, the Ordeal, Torture — John Shaqi
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
Notwithstanding the earnestness with which these teachings were
enforced, it may readily be believed that the wild barbarian, who was
clamoring for the restoration of stolen cattle, or the angry relatives,
eager to share the _wer-gild_ of some murdered kinsman, would scarce
submit to be balked of their rights at the cost of simple perjury on
the part of the criminal. We have seen that both before and after their
conversion to Christianity they had little scruple in defiling the most
sacred sanctions of the oath with cunning fraud, and they could repose
little confidence in the most elaborate devices which superstition
could invent to render perjury more to be dreaded than defeat. It was
therefore natural that they should perpetuate an ancestral custom,
which had arisen from the structure of their society, and which derived
its guarantee from the solidarity of families alluded to above. This
was the custom which was subsequently known as canonical compurgation,
and which long remained a part of English jurisprudence, under the
name of the Wager of Law. The defendant, when denying the allegation
under oath, appeared surrounded by a number of companions—_juratores_,
_conjuratores_, _sacramentales_, _collaudantes_, _compurgatores_, as
they were variously termed—who swore, not to their knowledge of the
facts, but as sharers and partakers in the oath of denial.
This form of procedure derives importance from the fact that it is an
expression of the character, not of an isolated sept, but of nearly all
the races that have moulded the destinies of modern Europe. Although
unknown to the Roman law, there are traces of it in the ancient
Hellenic legislation.[67] The Ostrogoths in Italy, and the Wisigoths
of the south of France and Spain were the only nations in whose extant
codes it occupies no place, and they, as has already been remarked,
at an early period yielded themselves completely to the influence
of the Roman civilization.[68] On the other hand, the Salians, the
Ripuarians, the Alamanni, the Baioarians, the Lombards, the Frisians,
the Norsemen, the Saxons, the Angli and Werini, the Anglo-Saxons, and
the Welsh, races whose common origin must be sought in the prehistoric
past, all gave to this form of purgation a prominent position in their
jurisprudence, and it may be said to have reigned from Southern Italy
to Scotland.[69]
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