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
Enlightened legislators were not slow in seconding the efforts of the
papacy. Perhaps the earliest instance of secular legislation directed
against the ordeal, except some charters granted to communes, is an
edict of Philip Augustus in 1200, bestowing certain privileges on the
scholars of the University of Paris, by which he ordered that a citizen
accused of assaulting a student shall not be allowed to defend himself
either by the duel or the water ordeal.[1350] In England, a rescript of
Henry III., dated January 27, 1219, directs the judges then starting on
their circuits to employ other modes of proof—“seeing that the judgment
of fire and water is forbidden by the Church of Rome.”[1351] A few
charters and confirmations, dated some years subsequently, allude to
the privilege of administering it; but Matthew of Westminster, when
enumerating, under date of 1250, the remarkable events of the half
century, specifies its abrogation as one of the occurrences to be
noted,[1352] and we may conclude that thenceforth it was practically
abandoned throughout the kingdom. This is confirmed by the fact that
Bracton, whose treatise was written a few years later, refers only to
the wager of battle as a legal procedure, and, when alluding to other
forms, speaks of them as things of the past. About the same time,
Alexander II. of Scotland forbade its use in cases of theft.[1353]
Nearly contemporary was the Neapolitan Code, promulgated in 1231, by
authority of the Emperor Frederic II., in which he not only prohibits
the use of the ordeal in all cases, but ridicules, in a very curious
passage, the folly of those who could place confidence in it.[1354]
We may conclude, however, that this was not effectual in eradicating
it, for, fifty years later, Charles of Anjou found it necessary to
repeat the injunction.[1355] About the same time, Waldemar II. of
Denmark, Hako Hakonsen of Iceland and Norway; and soon afterwards
Birger Jarl of Sweden, followed the example.[1356] In Frisia we learn
that the inhabitants still refused to obey the papal mandates, and
insisted on retaining the red-hot iron, a contumacy which Emo, the
contemporary Abbot of Wittewerum, cites as one of the causes of the
terrible inundation of 1219;[1357] though a century later the Laws
of Upstallesboom show that ordeals of all kinds had fallen into
desuetude.[1358] In France, we find no formal abrogation promulgated;
but the contempt into which the system had fallen is abundantly proved
by the fact that in the ordinances and books of practice issued
during the latter half of the century, such as the _Établissements_
of St. Louis, the _Conseil_ of Pierre de Fontaines, the _Coutumes du
Beauvoisis_ of Beaumanoir, and the _Livres de Jostice et de Plet_,
its existence is not recognized even by a prohibitory allusion, the
judicial duel thenceforward monopolizing the province of irregular
evidence. Indeed, a Latin version of the Coutumier of Normandy, dating
Public-domain text, read in full here on John Shaqi.
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