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
We have seen above occasional instances in which the accuser or
plaintiff offered to substantiate his veracity by an appeal to the
ordeal. This was an established rule with regard to the wager of
battle, but not as respects the other forms of the judgment of God,
which were regarded rather as means of defence than of attack. Still
there are occasional instances of instructions for their employment by
the accusing party. In the primitive laws of Russia, an accuser who
could not substantiate his case with witnesses was obliged to undergo
the ordeal of red-hot iron.[1231] In England it seems to have been
within the discretion of the court to order it for either the accuser
or the accused. A very singular case is recorded in 1202, in which
Astin of Wispington accused Simon of Edlington of assaulting him and
putting out an eye, when the court adjudged the red-hot iron ordeal and
gave to the defendant the option whether he or the prosecutor should
undergo it; Simon naturally preferred that his antagonist should try
the dangerous experiment, and the result was that the case was settled
without it.[1232] We have already seen (p. 385) that in some places
where the accused succeeded in clearing himself by the ordeal the
accuser was obliged to undergo it in order to determine the question of
his perjury.
Sometimes the ordeal was employed in connection with compurgation,
both for prosecution and defence, to supplement the notorious
imperfections of that procedure. Thus Archbishop Hincmar directs
that cases of complaint against priests for dissolute life shall be
supported by seven witnesses, of whom one must submit to the ordeal
to prove the truth of his companions’ oaths, as a wholesome check
upon perjury and subornation.[1233] With a similar object, the same
prelate likewise enjoins it on compurgators chosen by the accused, on
his failing to obtain the support of those who had been selected for
him by his judge.[1234] Allied to this was a rule for its employment
which was extensively adopted, allowing the accused the privilege
of compurgation with conjurators in certain cases, only requiring
him to submit to the ordeal on his failing to procure the requisite
number of sponsors. Thus, in 794, a certain Bishop Peter, who was
condemned by the Synod of Frankfort to clear himself, with two or
three conjurators, of the suspicion of complicity in a conspiracy
against Charlemagne, being unable to obtain them, one of his vassals
offered to pass through the ordeal in his behalf, and on his success
the bishop was reinstated.[1235] That this was strictly in accordance
with usage is shown by a very early text of the Salic Law,[1236] as
well as by a similar provision in the Ripuarian code.[1237] Among
the Anglo-Saxons it likewise obtained, from the time of the earliest
allusion to the ordeal occurring in their jurisprudence, down to
the period of the Conquest.[1238] Somewhat similar in tendency was
a regulation of Frederic Barbarossa, by which a slave suspected of
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