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
Throughout both Northern and Southern Germany, where the minute
distinctions of birth were guarded with the most jealous care from
a very early period, the codes of the thirteenth century, including
even the burgher laws, provided that a difference of rank permitted
the superior to decline the challenge of an inferior, while the latter
was obliged to accept the appeal of the former. So thoroughly was
this principle carried into practice, that, to compel the appearance
of a _Semperfri_, or noble of sixteen quarterings, the appellant was
required to prove himself of equally untarnished descent.[449] In the
same spirit a Jew could not decline the appeal of battle offered by a
Christian accuser, though we may safely infer that the Jew could not
challenge the Christian.[450] So, in the Latin kingdom of Jerusalem,
the Greek, the Syrian, and the Saracen could not challenge the Frank,
but could not, in criminal cases, decline his challenge, though they
might do so in civil suits.[451] In Aragon, no judicial duel was
permitted between a Christian and a Jew or a Saracen,[452] while in
Castile both combatants had to be gentlemen, quarrels between parties
of different ranks being settled by the courts.[453] On the other
hand, in Wales, extreme difference of rank was held to render the duel
necessary, as in cases of treason against a lord, for there the lord
was plaintiff against his vassal, and as no man could enter into law
with his lord, the combat was considered the only mode of prosecution
befitting his dignity.[454]
A question of this nature was the remote occasion of the murder of
Charles the Good, Count of Flanders, in 1127. Bertulf, Provost of the
church of Bruges, was rich and powerful, although in reality his family
were villeins of the count. He married his nieces to knights, one of
whom, in presence of the count, appealed another knight to battle.
The appellee refused on the ground that he was not obliged to notice
the challenge of a villein, for according to the law of the land a
freeman marrying a serf was reduced to the latter condition after the
expiration of a year. The Count’s attention being thus called to his
rights over the family of Bertulf, he proceeded to establish them, when
Bertulf set on foot the conspiracy which ended in the assassination of
the count.[455]
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