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
In England, although as we have seen (p. 57), the wager of law was the
customary resource of the manorial courts in disputed questions, the
shrewd and intelligent lawyers who were building up and systematizing
the practice of the royal courts were disposed to limit it as much as
possible in criminal cases. Towards the close of the twelfth century,
Glanville compiled his excellent little treatise “De legibus Angliæ,”
the first satisfactory body of legal procedure which the history of
mediæval jurisprudence affords. Complete as this is in all the forms
of prosecution and defence, the allusions to conjurators are so slight
as to show that already they were employed rather on collateral
points than on main questions. Thus a defendant who desired to deny
the serving of a writ could swear to its non-reception with twelve
conjurators;[195] and a party to a suit, who had made an unfortunate
statement or admission in court, could deny it by bringing forward
two to swear with him against the united recollections and records
of the whole court.[196] The custom, however, still maintained its
hold on popular confidence. In 1194, when Richard I. undertook,
after his liberation, to bring about a reconciliation between his
chancellor William, Bishop of Ely, and the Archbishop of York, one of
the conditions was that the chancellor should swear with a hundred
priestly compurgators that he had neither caused nor desired the arrest
of the archbishop.[197] In the next century Bracton alludes to the
employment of conjurators in cases of disputed feudal service between a
lord and his vassal, wherein the utmost exactness was rigidly required
both as to the number and fitness of the conjurators,[198] and we shall
see that no formal abrogation of it took place until the nineteenth
century. An outgrowth of the custom, moreover, was the Inquest of
Fame, by which “the general character of the accused, as found by a
jury, was accepted as an indication of the guilt or innocence of the
prisoner.”[199]
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