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
Abstract principles, however, though freely admitted, were not yet
powerful enough to eradicate traditional customs rooted deeply in
the feelings and prejudices of the age. The three bodies of law just
cited contradict their own admissions, in retaining with more or less
completeness the most monstrous of negative proofs—the ordeal of
battle—and the introduction of torture soon after exposed the accused
to the chances of the negative system in its most atrocious form.
Still these codes show a marked progress as relates to the kindred
procedure of compurgation. The Partidas, promulgated about 1262,
record the convictions of an enlightened ruler as to what should be
law rather than the existing institutions of a people, and were not
accepted as authoritative until the middle of the fourteenth century.
The absence of compurgation in Spain, moreover, was a direct legacy
from the Wisigothic code, transmitted in regular descent through the
Fuero Juzgo.[207] The Assises de Jerusalem is a more precious relic
of mediæval jurisprudence. Constructed as a code for the government
of the Latin kingdoms of the East, in 1099, by order of Godfrey of
Bouillon, it has reached us only in the form assumed about the period
under consideration, and as it presents the combined experience of
the warriors of many Western races, its silence on the subject of
conjurators is not a little significant. The work of Beaumanoir,
written in 1283, is not only the most perfect embodiment of the
French jurisprudence of his time, but is peculiarly interesting as a
landmark in the struggle between the waning power of feudalism and
the Roman theories which gave intensity of purpose to the enlightened
centralization aimed at by St. Louis: and Beaumanoir likewise passes
in silence over the practice of compurgation, as though it were no
longer an existing institution. All these legislators and lawyers had
been preceded by the Emperor Frederic II., who, in 1231, promulgated
his “Constitutiones Sicularum” for the government of his Neapolitan
provinces. Frederic was Latin, and not Teutonic, both by education and
predilection, and his system of jurisprudence is greatly in advance of
all that had preceded it. That conjurators should find no place in his
scheme of legal procedure is, therefore, only what might be expected.
The collection of laws known as the _Êtablissements_ of St. Louis is
by no means a complete code, but it is sufficiently copious to render
the absence of all allusion to compurgation significant. In fact, the
numerous references to the Digest show how strong was the desire to
substitute the Roman for the customary law, and the efforts of the king
to do away with all negative proofs of course included the one under
consideration. The same may be said of the _Livres de Jostice et de
Plet_ and the _Conseil_ of Pierre de Fontaines, two unofficial books
of practice, which represent with tolerable fulness the procedures
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