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 second Otho was fully imbued with his father’s views, and so
completely did he carry them out, that in a gloss on the Lombard law
he is actually credited with the introduction of the duel.[364] In
the preceding essay, allusion has been made to his substitution of
the judicial combat for the compurgatorial oath in 983, and about the
same period he made an exception, in favor of the battle ordeal, to
the immemorial policy of the barbarians which permitted to all subject
races the enjoyment of their ancestral usages. At the council of
Verona, where all the nobles of Italy, secular and ecclesiastical, were
assembled, he caused the adoption of a law which forced the Italians
in this respect to follow the customs of their conquerors.[365] Even
the church was deprived of any exemption which she might previously
have enjoyed, and was only allowed the privilege of appearing by her
_advocati_ or champions.[366] There were small chances of escape
from the stringency of these regulations, for an edict of Otho I. in
971 had decreed the punishment of confiscation against any one who
should refuse to undergo the chances of the combat.[367] It may even
be assumed, from the wording of a constitution of the Emperor Henry
II., that in the early part of the eleventh century it was no longer
necessary that there should be a doubt as to the guilt of the accused
to entitle him to the privileges of the combat, and that even the most
notorious criminal could have a chance of escape by an appeal to the
sword.[368]
Thus it came to pass that nearly every question that could possibly
arise was finally deemed liable to the decision of the wager of battle.
If Otho the Great employed champions to legislate respecting a disputed
point of law, he was not more eccentric than the Spaniards, who settled
in the same manner a controversy regarding the canonical observances
of religion, when Gregory VII. endeavored to force the introduction
of the Roman liturgy into Castile and Leon, in lieu of the national
Gothic or Mozarabic rite. With considerable difficulty, some years
before, Navarre and Aragon had been led to consent to the change, but
the Castilians were doggedly attached to the observances of their
ancestors, and stoutly refused compliance. In 1077, Alfonso I. procured
the assent of a national council, but the people rebelled, and after
repeated negotiations the matter was finally referred to the umpirage
of the sword. The champion of the Gothic ritual was victorious, and
tradition adds that a second trial was made by the ordeal of fire;
a missal of each kind was thrown into the flames, and the national
liturgy emerged triumphantly unscathed.[369]
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