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
throne with her innocence recognized.[309] Indeed, the tenacious hold
which it maintained on the veneration of the Lombards is seen in the
fruitless efforts to restrict its employment and to abrogate it by
Rotharis and his successors under the civilizing influence of contact
with Roman institutions. Thus Rotharis forbids its use in some cases
of importance, substituting conjurators, with a marked expression of
disbelief, which shows how little confidence was felt in its results by
enlightened men.[310] The next lawgiver, King Grimoald, decreed that
thirty years’ possession of either land or liberty relieved a defendant
from maintaining his title by battle, the privilege of employing
conjurators being then conceded to him.[311] In the succeeding
century, King Liutprand sought to abolish it entirely, but finding
the prejudices of his people too strong to be overcome, he placed on
record in the statute-book a declaration of his contempt for it and
a statement of his efforts to do away with it, while he was obliged
to content himself with limiting the extent of its application, and
diminishing the penalties incurred by the defeated party.[312]
While the laws of the Angles, the Saxons, and the Frisians bear ample
testimony to the general use of the wager of battle,[313] it is not a
little singular that the duel appears to have been unknown among the
Anglo-Saxons. Employed so extensively as legal evidence throughout
their ancestral regions, by the kindred tribes from which they sprang,
and by the Danes and Norwegians who became incorporated with them;
harmonizing, moreover, with their general habits and principles of
action, it would seem impossible that they should not likewise have
practised it. I can offer no explanation of the anomaly, and can only
state the bare fact that the judicial combat is not referred to in any
of the Anglo-Saxon or Anglo-Danish codes.[314] There seems, indeed, to
be no reason to doubt that its introduction into English jurisprudence
dates only from the time of William the Conqueror.[315]
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