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
The ordeal was thoroughly and completely a judicial process, ordained
by the law for certain cases, and carried out by the tribunals as
a regular form of ordinary procedure. From the earliest times, the
accused who was ordered to undergo the trial was compelled to submit to
it, as to any other decree of court. Thus, by the Salic law, a recusant
was summoned to the royal court; and if still contumacious, he was
outlawed and his property confiscated, as was customary in all cases
of contempt.[1208] The directions of the codes, as we have seen, are
generally precise, and admit of no alternative.[1209] Occasionally,
however, a privilege of selection was afforded between this and
other modes of compurgation, and also between the various forms of
ordeal.[1210]
There was, however, a remarkable exception to this enforcement of the
ordeal in a provision existing in some codes by which a man condemned
to it could buy himself off by compounding with his adversary. This
mode of adjustment was not extensively introduced, but it nevertheless
existed among the Anglo-Saxons,[1211] while among the Franks it was a
settled custom, permitted by all the texts of the Salic law, from the
earliest to the latest.[1212] By this a person condemned by the court
to undergo the ordeal could, by a transaction with the aggrieved party,
purchase the privilege of clearing himself by canonical purgation,
and thus escape the severer trial. He was bound to pay his accuser
only a portion of the fine which he would incur if proved guilty—a
portion varying with different offences from one-fourth to one-sixth
of the _wer-gild_. The interests of the tribunal were guarded by a
clause which compelled him to pay to the _grafio_, or judge, the full
_fredum_, or public fine, if his conscience impelled him to submit
to an arrangement for more than the legal percentage. Even as late
as 1229, by the Bohemian laws of Ottokar Premislas the accused could
escape the ordeal by paying seven deniers to the seigneur.[1213]
Public-domain text, read in full here on John Shaqi.
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