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 the confusion arising from the long and varying contest as to the
boundaries of civil and ecclesiastical jurisdiction, it is not easy to
determine the exact influence which this decretal may have exercised
directly in secular jurisprudence. We have seen above that the ancient
form of absolute oath was still employed without change until long
after this period, but the moral effect of so decided a declaration
from the head of the Christian church could not but be great. Another
influence, not less potent, was also at work. The revival of the
study of the Roman jurisprudence, dating from about the middle of
the twelfth century, soon began to exhibit the results which were to
work so profound a change in the legal maxims and principles of half
of Europe.[204] The criminal procedure of the Barbarians had rested
to a great degree on the system of negative proofs. In the absence of
positive evidence of guilt, and sometimes in despite of it, the accused
was bound to clear himself by compurgation or by the ordeal. The
cooler and less impassioned justice of the Roman law saw clearly the
futility of such attempts, and its system was based on the indisputable
maxim that it is morally impossible to prove a negative—unless, indeed,
that negative should chance to be incompatible with some affirmative
susceptible of evidence—and thus the onus of proof was thrown upon the
accuser.[205] The civil lawyers were not long in recognizing the truth
of this principle, and in proclaiming it far and wide. The Spanish code
of Alfonso the Wise, in the middle of the thirteenth century, asserts
it in almost the same words as the Roman jurisconsult.[206] Not long
before, the Assises de Jerusalem had unequivocally declared that “nul
ne peut faire preuve de non;” and Beaumanoir, in the _Coutumes du
Beauvoisis_, approvingly quotes the assertion of the civil doctors to
the same effect, “Li clerc si dient et il dient voir, que negative ne
doit pas quevir en proeve.”
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account