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
The fierce mountaineers of Béarn were comparatively inaccessible to the
innovating spirit of the age, and preserved their feudal independence
amid the progress and reform of the sixteenth century long after it
had become obsolete elsewhere throughout Southern Europe. Accordingly,
we find the practice of compurgation maintained as a regular form of
procedure in the latest revision of their code, made by Henry II.
of Navarre in 1551, which continued in force until the eighteenth
century.[217] The influence of the age is shown, however, even there,
in a modification of the oath, which is no longer an unreserved
confirmation of the principal, but a mere affirmation of belief.[218]
In Castile, a revival of the custom is to be found in the code
compiled by Pedro the Cruel, in 1356, by which, in certain cases,
the defendant was allowed to prove his innocence with the oath of
eleven hidalgos.[219] This, however, is so much in opposition to
the principles of the Partidas, which had but a few years previous
been accepted as the law of the land, and is so contrary to the
spirit of the Ordenamiento de Alcalà, which continued in force until
the fifteenth century, that it can only be regarded as a tentative
resuscitation of mere temporary validity.
* * * * *
The Northern races resisted more obdurately the advances of the
reviving influence of the Roman law. Though we have seen Frederic
II. omitting all notice of compurgation in the code prepared for his
Neapolitan dominions in 1231, he did not attempt to abrogate it among
his German subjects, for it is alluded to in a charter granted to the
city of Regensburg in 1230.[220] The Schwabenspiegel, which during the
thirteenth and fourteenth centuries was the municipal law of Southern
Germany, directs the employment of conjurators in various classes of
actions which do not admit of direct testimony.[221] The code in force
in Northern Germany, as we have already seen, gave great facilities
for rebutting accusations by the single oath of the defendant, and
therefore the use of conjurators is but rarely referred to in the
Sachsenspiegel, though it was not unknown, for either of the parties to
a judicial duel could refuse the combat by procuring six conjurators
to swear with him that he was related to his antagonist.[222] In the
Saxon burgher law, however, the practice is frequently alluded to, and
it would seem from various passages that a man of good character who
could get six others to take with him the oath of denial was not easily
convicted. But where there was satisfactory proof, compurgation was not
allowed, and in homicide cases, if a relative of the slain decided to
proceed by the duel, his claim of vengeance was supreme, and no other
process was admissible.[223] It is evident, however, that compurgation
retained its hold on popular respect when we see, about 1300, the
Emperor Albert I. substituting it for the duel in a considerable class
Public-domain text, read in full here on John Shaqi.
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