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
of Charles le Sage in 1357 allude to compurgation as still in use and
of binding force.[212]
It was in the provinces, however, that the system manifested its
greatest vitality, protected both by the stubborn dislike to
innovation and by the spirit of independence which so long and so
bitterly resisted the centralizing efforts of the crown. The Roman law
concentrated all power in the person of the sovereign, and reduced his
subjects to one common level of implicit obedience. The genius of the
barbaric institutions and of feudalism localized power. The principles
were essentially oppugnant, and the contest between them was prolonged
and confused, for neither party could in all cases recognize the
ultimate result of the minuter points involved, though each was fully
alive to the broad issues of the struggle.
How obstinate was the attachment to bygone forms may be understood
when we see even the comparatively precocious civilization of a city
like Lille preserve the compurgatorial oath as a regular procedure
until the middle of the fourteenth century, even though the progress of
enlightenment had long rendered it a mere formality, without serious
meaning. Until the year 1351, the defendant in a civil suit was obliged
to substantiate the oath of denial with two conjurators of the same
sex, who swore to its truth, to the best of their belief.[213] The
minutest regulations were enforced as to this ceremony, the position
of every finger being determined by law, and though it was the veriest
formality, serving merely as an introduction to the taking of testimony
and the legal examination of the case, yet the slightest error
committed by either party lost him the suit irrecoverably.[214]
Normandy was even more faithful to the letter of the ancient
traditions. The Coutumier in use until the revision of 1583 under Henry
III. retains a remnant of the practice under the name of _desrene_, by
which, in questions of little moment, a man could rebut an accusation
with two or four compurgators, even when it was sustained by witnesses.
The form of procedure was identical with that of old, and the oath,
as we have already seen (page 58), was an unqualified assertion of
the truth of that of the accused.[215] Practically, however, we may
assume that the custom had become obsolete, for the letters patent of
Henry III., ordering the revision in 1577, expressly state that the
provisions of the existing laws “estoient la pluspart hors d’usage et
peu ou point entendu des habitants du pays;” and that compurgation was
one of the forgotten formulas may fairly be inferred from the fact that
Pasquier, writing previous to 1584, speaks of it as altogether a matter
of the past.[216]
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