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
It would be endless to specify all the variations in the numbers
required by the different codes in all imaginable cases of quarrel
between every class of society. Numerous elements entered into these
regulations; the nature of the crime or claim, the station of the
parties, the rank of the compurgators, and the mode by which they
were selected. Thus, in the simplest and most ancient form, the Salic
law merely specifies twenty-five compurgators to be equally chosen by
both parties.[94] Some formulas of Marculfus specify three freeholders
and twelve friends of the accused.[95] A Merovingian edict of 593
directs the employment of three peers of the defendant, with three
others chosen for the purpose, probably by the court.[96] Alternative
numbers, however, soon make their appearance, depending upon the manner
in which the men were chosen. Thus among the Alamanni, on a trial
for murder, the accused was obliged to secure the support of twenty
designated men, or, if he brought such as he had selected himself,
the number was increased to eighty.[97] So, in a capitulary of 803,
Charlemagne prescribes seven chosen conjurators, or twelve if taken
at random,[98] a rule which is virtually the same as that laid down
by the Emperor Henry III. in the middle of the eleventh century.[99]
In 922 the council of Coblentz directs that accusations of sacrilege
could be rebutted with twenty-four chosen men, or seventy-two freemen
not thus selected.[100] In Bigorre the law thus discriminated against
the _cagots_—an infamous wandering race of uncertain origin—for cases
in which the oaths of seven conjurators ordinarily sufficed required
thirty _cagots_, when the latter were called upon to act.[101] In an
English record of the fifteenth century we find a defendant called
upon to prove his innocence with six of his neighbors or twelve
strangers.[102]
Strangely enough, the church at one time adopted the principle that the
higher the rank of the accused the more he must present of his peers
as compurgators. Thus the bishop required eleven bishops, the priest
five priests, and the deacon two deacons; but Cardinal Henry of Susa
who enunciates this says it is an error, and that the number is at the
discretion of the judge.[103] The rule, moreover, that the compurgators
must be of the same rank and class as the accused was waived when they
were presumably inimical to him or the proper number could not be had,
and thus a cleric might be cleared by the oaths of laymen.[104]
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