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 custom of supporting an accusatorial oath by conjurators was
maintained in some portions of Europe to a comparatively recent
period. Wachter[281] prints a curious account of a trial, occurring
in a Suabian court in 1505, which illustrates this, as well as the
weight which was still attached to the oath of a defendant. A woman
accused three men on suspicion of being concerned in the murder of
her husband. They denied the charge, but when the oath of negation
was tendered to them, with the assurance that, if they were Suabians,
it would acquit them, they demanded time for consideration. Then the
advocate of the widow stepped forward to offer the oath of accusation,
and two conjurators being found willing to support him the accused
were condemned without further examination on either side. A similar
process was observed in the Vehmgericht, or Court of the Free Judges
of Westphalia, whose jurisdiction in the fourteenth and fifteenth
centuries became extended over the whole of Germany. Accusations were
supported by conjurators, and when the defendant was a Frei-graff, or
presiding officer of a tribunal, the complainant was obliged to procure
seven Frei-schöppen, or free judges, to take the accusatorial oath with
him.[282]
The latest indication that I have met with of established legal
provisions of this nature occurs in the custom of Britanny, as revised
in 1539. By this, a man claiming compensation for property taken away
is to be believed on oath as to his statement of its value, provided he
can procure companions worthy of credence to depose “qu’ils croyent que
le jureur ait fait bon et loyal serment.”[283] Even this last vestige
disappears in the revision of the Coutumier made by order of Henry III.
in 1580.
II.
THE WAGER OF BATTLE.
CHAPTER I.
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