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
Soon after the time of Glanville, the system of compurgation received
a severe shock from its most important patron, the church. As stated
above, in proceedings between ecclesiastics, it was everywhere received
as the appropriate mode of deciding doubtful cases. At the same time
the absolute character of the compurgatorial oath was too strong an
incentive to perjury, ignorant or wilful, for conscientious minds to
reconcile themselves to the practice, and efforts commenced to modify
it. About 1130 Innocent II., in prescribing compurgation for the Bishop
of Trent, accused of simony, orders that the oath of the conjurators
shall be simply as to their belief in the bishop’s oath.[200] Gratian
inserted this in his _Decretum_, and a commentator soon afterwards
speaks of it as an opinion held by some authorities.[201] It was
reserved for Innocent III. to give this the full sanction of law as
a general regulation. Compurgation was too valuable a resource for
churchmen to be discarded, and he endeavored to check the abuses
to which it led, by demanding conjurators of good character, whose
intimacy with the accused would give weight to their oaths.[202] At
the same time, in endeavoring to remove one of the objections to its
use, he in reality destroyed one of its principal titles to respect,
for in decreeing that compurgators should only be obliged to swear to
their belief in the truth of the principal’s oath,[203] he attacked the
very foundation of the practice, and gave a powerful impulse to the
tendency of the times no longer to consider the compurgator as sharing
the guilt or innocence of the accused. Such an innovation could only be
regarded as withdrawing the guarantee which had immemorially existed.
To recognize it as a legal precept was to deprive the proceeding of its
solemnity and to render it no longer a security worthy the confidence
of the people or sufficient to occupy the attention of a court of
justice.
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