Scotland under her early kings, Volume 1 (of 2) : $b a history of the kingdom to the close of the thirteenth centuryRobertson, Eben William
History
Scotland under her early kings, Volume 1 (of 2) : $b a history of the kingdom to the close of the thirteenth century
Robertson, Eben William
Scotland -- History -- To 1603
It was probably, then, upon a system acknowledging the usual Ordeals
of water and iron, the Wager of battle, and Compurgation “by oath
sworn on the altar, according to the custom of Scotland,” and in which
justice was generally administered by the district, provincial, or
royal judge, whether inheriting his office, nominated by the crown,
or chosen as arbiter in the public _Moot_, that David introduced
the “Jugement del Pais” or _Visnet_; which must have, ere long,
replaced the judgment of the earlier Brehon, or Deempster, by the
verdict of “the good men of the country,” or the leading proprietary
of the neighbourhood. Henceforth judgment was to be given by “the
free-tenants, suitors of the Court,” sentence only being pronounced
according to their verdict by the Judge, Sheriff, Alderman, or Bailiff,
who was bound to leave the Court during their deliberation; and in
process of time, the representative of the ancient president of the
Gaelic Court of justice sunk so low, that the holder of the office
of Deempster, which had long been shifted upon the lowest official
of the law, no longer appeared at all in Court, except to pronounce
that sentence of death which he himself was bound to execute--he
was the _Hangman_. Every man, whether Earl, Baron, Vavassor,
or Burgess, was entitled to be tried by his Peers, though one of
lesser standing might be judged by the verdict of his superiors.
Damages, or the amount of injuries sustained, were to be assessed
by men of credit--_fide-digni_, the “unlying witnesses” of
Athelstan’s Laws; and in challenge of battle, the sum deposited was
to be estimated, not according to the claim of the challenger, but
by “the assize of the good country,” the “body of the defender”
being reckoned as one-third of the amount; whilst if a man accused
of theft could prove, to the satisfaction of a similar jury, that
the complainant had never possessed as much property as he charged
the accused with stealing, the latter was to be at once acquitted by
their verdict. Jurisdiction in the four greater causes known as “the
Crown-pleas”--murder, rape, robbery, and fire-raising--was removed
from the lesser Courts, no Alderman or Baron’s Bailiff being permitted
to try such cases unless by special mandate of the Justiciary or “his
attorney;” and it was ordered, that in every county a royal _Moot_
was to be held “within forty days,” or six week’s after the issue of
the king’s writ, which was to be attended by the Bishop, the Earl, the
Vicecomes, and by every free proprietor who was “Lord of a Vill.” All
direct appeals to the king were prohibited, except in cases connected
with the Crown-pleas, or where the officials in a lesser Court had
failed to do their duty; and if the last law, ascribed to David, is
not misplaced, all questions connected with property and inheritance
were to be referred to the decision of “the assize of the good
country.” The heir, no longer chosen according to the Law of Tanistry,
Public-domain text, read in full here on John Shaqi.
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