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 constitutional reverence of the Englishman for established forms
and customs, however, nominally preserved this relic of barbarism
in the common law to a period later by far than its disappearance
from the codes of other nations. The system of inquests and ordeals
established by the Assize of Clarendon in 1166 and the rise of the
jury system led to its being superseded in criminal matters, but in
civil suits it held its own. According to Bracton, in the thirteenth
century, in all actions arising from contracts, sales, donations, etc.,
when there was no absolute proof, the plaintiff came into court with
his _secta_, and the defendant was bound to produce two conjurators
for each one advanced by the plaintiff, the evidence apparently
preponderating according to quantity rather than quality.[238] From the
context, it would appear that the _secta_ of the plaintiff consisted
of his friends and followers willing to take the oath with him, but
not absolutely witnesses. The Fleta, however, some twenty-five years
later, uses the term in the sense of witnesses, and in actions of
debt directs the defence to be made with conjurators double in number
the plaintiff’s witnesses,[239] thus offering an immense premium on
dishonesty and perjury. Notwithstanding this, the nobles and gentry
who came to London to attend the court and Parliament apparently were
subjected to many annoyances by the citizens who strove to collect
their debts, and in 1363 Edward III. relieved them by abrogating
the wholesome rule laid down by Bracton, and enacting that a debtor
could wage his law with a sufficient number of conjurators in spite
of any papers put forward in evidence by the creditor, who is curtly
told to find his remedy in some other way.[240] The unquestionable
advantages which this offered to not the least influential part of a
feudal community probably had something to do with its preservation.
The “Termes de la Ley,” compiled in the early part of the sixteenth
century, states as the existing practice that “when one shall wage his
law, he shall bring with him 6, 8, or 12 of his neighbors, as the court
shall assign him, to swear with him;” and when in a statute of 1585
imposing severe fines for using wood or charcoal in iron manufacture
it is provided that offenders shall not be entitled to defence by
the wager of law, it shows that proceeding to be still in common use,
though it was recognized as a means of eluding justice.[241] Style’s
“Practical Register,” published in 1657, also describes the process,
but an absurd mistake as to the meaning of the traditional expression
“jurare manu” shows that the matter was rather a legal curiosity
than a procedure in ordinary use; and, indeed, the author expressly
states that the practice having been “abused by the iniquity of the
people, the law was forced to find out another way to do justice to
the nation.” Still the law remained unaltered, and a case is recorded
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