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
Nor was this merely a temporary extravagance. Late in the thirteenth
century, after enlightened legislators had been strenuously and not
unsuccessfully endeavoring to limit the abuse of the judicial combat,
the challenging of witnesses was still the favorite mode of escaping
legal condemnation.[329] Even in the fourteenth century, the municipal
law of Reims, which allowed the duel between principals only in
criminal cases, permitted witnesses to be indiscriminately challenged
and forced to fight, affording them the privilege of employing
champions only on the ground of physical infirmity or advanced
age.[330] A still more bizarre extension of the practice, and one which
was most ingeniously adapted to defeat the ends of justice, is found
in a provision of the English law of the thirteenth century, allowing
a man to challenge his own witnesses. Thus in many classes of crimes,
such as theft, forgery, coining, etc., the accused could summon a
“warrantor” from whom he professed to have received the articles which
formed the basis of the accusation. The warrantor could scarcely give
evidence in favor of the accused without assuming the responsibility
himself. If he refused, the accused was at liberty to challenge him; if
he gave the required evidence, he was liable to a challenge from the
accuser.[331] The warrantor was sometimes also employed as a champion,
and served for hire, but this service was illegal and when detected
involved the penalties of perjury.[332] Another mode extensively used
in France about the same time was to accuse the principal witness of
some crime rendering him incapable of giving testimony, when he was
obliged to dispose of the charge by fighting, either personally or by
champion, in order to get his evidence admitted.[333]
It is not easy to imagine any cases which might not thus be brought to
the decision of the duel; and the evidence of its universality is found
in the restriction which prevented the appearance as witnesses of those
who could not be compelled to accept the combat. Thus the testimony of
women and ecclesiastics was not receivable in lay courts in suits where
appeal of battle might arise;[334] and when in the twelfth century
special privileges were granted by the kings of France empowering serfs
to bear testimony in court, the disability which prevented a serf from
fighting with a freeman was declared annulled in such cases, as the
evidence was only admissible when the witness was capable of supporting
it by arms.[335]
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