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
of criminal cases.[224] In the early part of the sixteenth century,
Maximilian I. did much to diminish the use of the compurgatorial
procedure,[225] but that he failed to eradicate it entirely is
evident from a constitution issued by Charles V. in 1548, wherein its
employment is enjoined in doubtful cases in a manner to show that it
was an existing resource of the law, and that it retained its hold upon
public confidence, although the conjurators were only required to swear
as to their belief in the oath of their principal.[226]
In the Netherlands it likewise maintained its position. Damhouder,
writing in 1554, after describing its employment in the Courts
Christian, adds that by their example it was occasionally used also in
secular tribunals.[227]
In Scotland, as late as the middle of the fourteenth century, its
existence is proved by a statute which provides that if a thief escaped
from confinement, the lord of the prison should clear himself of
complicity with the evasion by the oaths of thirty conjurators, of whom
three were required to be nobles.[228]
The Scandinavian nations adhered to the custom with even greater
tenacity. In the code of Haco Haconsen, issued towards the close
of the thirteenth century, it appears as the basis of defensive
procedure in almost all criminal cases, and even in civil suits its
employment is not infrequently directed, the number of conjurators
being proportioned to the nature of the crime or to the amount at
stake, and regulations for administering the oath being given with much
minuteness.[229] In Denmark it was not abolished until near the middle
of the seventeenth century, under Christiern IV., after it had become
a crying abuse through the habit of members of families, and even of
whole guilds, entering into formal engagements to support each other
in this manner.[230] The exact date of its abrogation is a matter of
uncertainty, and the stubbornness with which the people clung to it is
shown by the fact that even in 1683 Christiern V., in promulgating a
new code, found it necessary formally to prohibit accused persons from
being forced to provide conjurators.[231] In Sweden, its existence
was similarly prolonged. Directions for its use are contained in the
code which was in force until the seventeenth century;[232] it is
constantly alluded to in the laws of Gustavus Adolphus;[233] and an
edict of Charles XI. in 1662 reproves the readiness with which men
were everywhere prompt to serve as compurgators, and requires the
judges, before admitting them, to investigate whether they are proper
persons and what are their reasons to believe in the innocence of their
principal.[234] By this time, therefore, though not yet witnesses, they
were becoming assimilated to them.
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