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
Among the heathen Northmen, as we have seen, every pleader, whether
plaintiff or defendant, was obliged to take a preliminary oath on the
sacred _stalla hringr_, or altar ring, duly bathed in the blood of an
ox sacrificed for the purpose. This custom was preserved in England,
where the Anglo-Saxon laws required, except in trivial cases, a
“fore-oath” from the accuser (_forath, antejuramentum, præjuramentum_),
and William the Conqueror, in his compilation of the laws of Edward the
Confessor, shows that this was sometimes strengthened by requiring the
addition of conjurators, who were in no sense witnesses, since their
oath had reference, not to the facts of the case, but solely to the
purity of intention on the part of the accuser.[268] Indications of the
same procedure are to be found in the collection known as the laws of
Henry I.[269] Probably to the development of this may be attributed the
peculiar device of the _secta_ already referred to (p. 84), consisting
of those who supported the plaintiff by their oaths while in no sense
absolute witnesses. They were not even examined unless the defendant
demanded it. The bringing of the _secta_ or suit remained a matter
of form long after the actual production of the witnesses had become
obsolete in the fourteenth century, and it was not finally abolished
until 1852.[270]
In an age of comparative simplicity, it is natural that men should turn
rather to the guarantees of individual character, or to the forms of
venerable superstition, than to the subtleties of legal procedure. Even
as the defendant was expected to produce vouchers of his truthfulness,
so might the plaintiff be equally required to give evidence that his
repute among his neighbors was such as to justify the belief that he
would not bring a false charge or advance an unfounded claim. The two
customs appear to arise from the same process of reasoning and to be
identical in spirit, leading to a contest between the two parties as
to which could bring forward the largest and most credible number of
conjurators, and the position of the accused being outsworn was a
recognized circumstance in jurisprudence. Thus, the Council of Tribur
in 895 provides that in such case he must either confess or undergo
the ordeal.[271] In process of time accusatorial conjurators became
commonly used in many places. In Béarn the laws of the thirteenth
century provide that in cases of debt under forty sous, where there was
no testimony on either side, the claimant could substantiate his case
by bringing forward one conjurator, while the defendant could rebut
it with two.[272] A similar rule obtained in England in all actions
arising from contracts and sales;[273] and in the laws of Soest in
Westphalia, compiled at the end of the eleventh or the commencement
of the twelfth century, an accusation of homicide could be proved by
six conjurators swearing with the prosecutor, while if this failed
the accused could then clear himself with eleven compurgators.[274]
Public-domain text, read in full here on John Shaqi.
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