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
By the German law of the same period, the privilege of reversing a
sentence by the sword existed, but accompanied with regulations which
seem evidently designed to embarrass, by enormous trouble and expense,
the gratification of the impulse which disappointed suitors would have
to establish their claims in such manner. Thus, by the Suabian law, it
could only be done in the presence of the sovereign himself, and not
in that of the immediate feudal superior;[349] while the Saxon code
requires the extraordinary expedient of a pitched battle, with seven
on each side, in the king’s presence.[350] It is not a little singular
that the feudal law of the same period has no allusion to the custom,
all appeals being regularly carried to and heard in the court of the
suzerain.[351]
CHAPTER IV.
CONFIDENCE REPOSED IN THE JUDICIAL DUEL.
Thus carefully moulded in conformity with the popular prejudices or
convictions of every age and country, it may readily be imagined
how large a part the judicial combat played in the affairs of daily
life. It was so skilfully interwoven throughout the whole system of
jurisprudence that no one could feel secure that he might not, at any
moment, as plaintiff, defendant, or witness, be called upon to protect
his estate or his life either by his own right hand or by the club
of some professional and possibly treacherous bravo. This organized
violence assumed for itself the sanction of a religion of love and
peace, and human intelligence seemed too much blunted to recognize the
contradiction.
There was, in fact, no question which might not be submitted to the
arbitrament of the sword or club. If Charlemagne, in dividing his vast
empire, forbade the employment of the wager of battle in settling the
territorial questions which might arise between his heirs,[352] the
prohibition merely shows that it was habitually used in affairs of the
highest moment, and the constant reference to it in his laws proves
that it was in no way repugnant to his general sense of justice and
propriety.
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