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
From a very early period, a minimum limit of value was established,
below which a pugnacious pleader was not allowed to put the life or
limb of his adversary in jeopardy. This varied of course with the
race and the period. Thus, among the Angli and Werini, the lowest
sum for which the combat was permitted was two solidi,[428] while
the Baioarians established the limit at the value of a cow.[429] In
the tenth century, Otho II. decided that six solidi should be the
smallest sum worth fighting for.[430] The so-called laws of Henry I.
of England decreed that in civil cases the appeal of battle should
not lie for an amount less than ten solidi.[431] In France, Louis
le Jeune, by an edict of 1168, forbade the duel when the sum in
debate was less than five sous,[432] and this remained in force for
at least a century.[433] The custom of Normandy in the thirteenth
century specifies ten sous as the line of demarcation between the
_lex apparens_ and the _lex simplex_ in civil suits,[434] and the
same provision retains its place in the Coutumier in use until the
sixteenth century.[435] In the Latin States of the East founded by
the Crusaders, the minimum was a silver marc in cases of both nobles
and roturiers.[436] A law of Aragon, in 1247, places the limit at ten
sous.[437]
As regards the inferior classes of society, innumerable documents
attest the right of peasants to decide their quarrels by the ordeal
of battle. By the old Lombard law, slaves were allowed to defend
themselves in this manner;[438] and they could even employ the duel
to claim their liberty from their masters, as we may infer from a law
of King Grimoald denying this privilege to those who could be proved
to have served the same master for thirty continuous years.[439]
Similarly, among the Frisians, a _litus_ claiming his liberty was
allowed to prove it against his master with arms.[440] The institutions
of feudalism widened the distance between the different classes of
society, and we have already seen that, in the thirteenth century,
serfs were enfranchised in order to enable them to support their
testimony by the combat; yet this was only the result of inequality of
rank. In the time of Beaumanoir (1283), though an appeal would not lie
from a serf to a freeman, it may be safely inferred from the context
that a combat could be legally decreed between two serfs if the consent
of their masters were obtained,[441] and other contemporary authorities
show that a man claimed as a serf could defend his freedom with the
sword against his would-be master.[442] Even Jews were held liable to
the appeal of battle, as we learn from a decision of 1207, preserved
in an ancient register of assizes in Normandy,[443] and they no doubt
purchased the exemption, which was granted to them, except in cases of
flagrant murder, by Philippe le Long, as a special favor, in 1317.[444]
Public-domain text, read in full here on John Shaqi.
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