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
Efforts of course were made from time to time to preserve the purity
of the appeal, and to secure impartiality in its application. Clotair
II., in 595, directs that three chosen persons shall attend on each
side to prevent collusion;[1280] and among the Anglo-Saxons, some four
hundred years later, Ethelred enjoins the presence of the prosecutor
under penalty of loss of suit and fine of twenty _ores_, apparently for
the same object, as well as to give authenticity to the decision.[1281]
So in Hungary, the laws of St. Ladislas, in 1092, direct that three
sworn witnesses shall be present to attest the innocence or guilt of
the accused as demonstrated by the result.[1282] A rule announced by
the Council of Grateley in 928, that if the accused is accompanied by
more than twelve comrades he shall be adjudged as though he had failed
in the ordeal, points to an obvious source of miscarriage of justice
by which a crowd of partisans could interfere with the proceedings and
then proclaim that the result had been successful.[1283] A law adopted
by the Scottish Parliament under William the Lion, in the second
half of the twelfth century, shows that corruption was not uncommon,
by forbidding those concerned in the administration of ordeals from
receiving bribes to divert the course of justice,[1284] and a further
precaution was taken by prohibiting the Barons from adjudging the
ordeal without the intervention of the sheriff to see that law and
justice were observed.[1285]
In spite of all that we have seen, the ordeal, with its undoubted
cruelty, was not as cruel as it appears to us, and in its practical
results it probably acquitted the guilty far more often than it
convicted the innocent. Mr. Maitland tells us that in his researches
in the English records from 1201 till the abolition of the ordeal in
1219—a period in which, as stated above (p. 387), it was in constant
use—he has found but one instance in which it failed to clear the
accused.[1286] It is true that the cold-water ordeal was the one most
freely resorted to, but the red-hot iron was also freely employed, and
the one case of failure occurred in the water ordeal. At this distance
of time it would be useless to frame a positive explanation of this,
although bribery and collusion of course naturally suggest themselves
in the notorious and almost universal corruption of the period.
Contemporaries reconciled themselves to this as best they could, but
while relying comfortably upon the inscrutable judgment of God, and the
preservative power of contrition and confession, they were not without
other solutions of the problem.
Public-domain text, read in full here on John Shaqi.
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