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
accordingly deposed.[174] Incidents like this, however, did not destroy
confidence in the system, for, some sixty years later, we find Innocent
II. ordering the Bishop of Trent, when similarly accused of simony,
to clear himself with the oaths of two bishops and three abbots or
monks.[175]
The comparative value attached to the oaths of conjurators is
illustrated by the provisions which are occasionally met with,
regulating the cases in which they were employed in default of
witnesses, or in opposition to them. Thus, in the Baioarian law, the
oath of one competent witness is considered to outweigh those of six
conjurators;[176] and among the Lombards, an accusation of murder which
could be met with three witnesses required twelve conjurators as a
substitute.[177]
It is therefore evident that conjurators were in no sense witnesses,
that they were not expected to give testimony, and that they merely
expressed their confidence in the veracity of their principal. It may
consequently at first sight appear somewhat unreasonable that they
should be held guilty of perjury and subject to its penalties in case
of unluckily sustaining the wrong side of a cause. It is probably
owing to this apparent injustice that some writers have denied that
they were involved in the guilt of their principal, and among others
the learned Meyer has fallen into this error.[178] The proof, however,
is too clear for dispute. We have already seen that the oath was an
unqualified assertion of the justice of the side espoused, without
reservation justifying the escape of the compurgators from the charge
of false swearing, and one or two incidental references have been made
to the punishments inflicted on them when subsequently convicted of
perjury. The code of the Alamanni recognized the guilt involved in
such cases when it denied the privilege of compurgation to any one who
had previously been more than once convicted of crime, giving as a
reason the desire to save innocent persons from incurring the sin of
perjury.[179] Similar evidence is derived from a regulation promulgated
by King Liutprand in the Lombard Law, by which a man nominated as a
conjurator, and declining to serve, was obliged to swear that he dared
not take the oath for fear of his soul.[180] A case in point occurs in
the life of St. Boniface, whose fellow-laborer Adalger in dying left
his property to the church. The graceless brothers of the deceased
disputed the bequest, and offered to make good their claim to the
estate by the requisite number of oaths. The holy man ordered them to
swear alone, in order not to be concerned in the destruction of their
conjurators, and on their unsupported oaths gave up the property.[181]
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