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
There is also another aspect in which it is probable that the ordeal
was viewed by those whose common sense must have shrunk from it as a
simple appeal to the judgment of God. There can be little doubt that
it was frequently found of material use in extorting confession or
unwilling testimony. By the early codes, as in the primitive Greek and
Roman law, torture could be applied only to slaves, and the ordeal was
a legalized torture, applied under circumstances peculiarly provocative
of truth, and as such we occasionally find regulations which enable
the freeman to escape by compurgation, while the slave is required to
undergo the ordeal.[1251] The elaborate nature of the ritual employed,
with its impressive adjurations and exorcisms, was well fitted to
excite the imagination and alarm the conscience; sometimes, indeed,
to render it more effective, the mass celebrated was a mortuary one,
which when sung for a living man was popularly believed to possess
deadly powers of peculiar efficacy.[1252] In those ages of faith,
the professing Christian, conscious of guilt, must indeed have been
hardened who could undergo these awful rites, pledging his salvation
on his innocence, and knowing under such circumstances that the direct
intervention of Heaven could alone save him from having his hand boiled
to rags,[1253] after which he was to meet the full punishment of his
crime, and perhaps in addition lose a member for the perjury committed.
With such a prospect, all motives would conspire to lead him to a
prompt and frank acknowledgment in the early stages of the proceedings
against him. These views are strengthened by the fact that when, in
the thirteenth century, the judicial use of torture, as a means of
obtaining testimony and confession, was becoming systematized and
generally employed, the ordeal was falling into desuetude and rapidly
disappearing. The latter had fulfilled its mission, and the former was
a substitute better fitted for an age which reasoned more, believed
less, and at the same time was quite as arbitrary and cruel as its
predecessor. A further confirmation of this supposition is afforded by
the coincidence that the only primitive jurisprudence which excluded
the ordeal—that of the Wisigoths—was likewise the only one which
habitually permitted the use of torture,[1254] the only reference to
the ordeal in their code being a provision which directs its employment
as a preliminary to the more regular forms of torture.
Public-domain text, read in full here on John Shaqi.
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