Superstition and Force: Essays on the Wager of Law, the Wager of Battle, the Ordeal, Torture — John Shaqi
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 fragments of the Avesta are the earliest records of Aryan
legislation that have reached us, and in them we find distinctly marked
evidence of this common responsibility of the kindred.[3] Among the
Hindus, the ancient code, known as the Manava Dharma Sastra, represents
a highly complex social organization, in which primitive institutions
have been completely overlaid by the later and antagonistic elements
of caste and Brahmanism, but yet it reveals the existence of village
communities which were a direct development of the primal system
of the family;[4] and the ancient solidarity of these communities
is shown in the provision that if a murder or robbery could not be
traced, the village in which it occurred was obliged to make it good,
or that to which the track of the offender could be followed.[5] In
the adventures of the Kauravas and Pandavas, moreover, the Mahabharata
preserves fragments of traditions conveying some indications of a
pre-existing solidarity among kindred.[6] Much more clearly defined
were the Hellenic organizations of the _patræ_ and _phratriæ_; while
the institution of the _wer-gild_ is seen in the wages earned by
Heracles in serving Omphale, to be paid to the kinsmen of the murdered
Iphitus; and its existence can be traced to historic times in the
payments provided by the Trallian laws to the families of the subject
Leleges and Minyans who might be slain. Sir Henry Maine has acutely
suggested, also, that the belief in an hereditary curse, which plays
so awful a part in Grecian legend, is derived from the primal idea
of the solidarity of the family group.[7] In Rome, notwithstanding
the powerful Latin tendency to absorb all minor subdivisions into the
state, the institution of the _gens_, and the relationship between the
patron and his clients, bear striking analogies to the organizations
which we find among the Teutonic tribes as they emerge into history;
while the fine imposed on the elder Horatius, to expiate for his son
the crime of slaying his sister, shows a remnant still existing of
the _wer-gild_ levied on the relatives.[8] The early legislation of
the Celts, both in the Irish and Welsh tribes, as we shall presently
see, carried the solidarity of the family to its highest point of
development. The same institutions form a prominent feature of social
organization among the Slavs. The Russian Mir, or communal society,
is evidently a development of the original family; while the Ruskaia
Prawda, the earliest extant code, promulgated by Yaroslav Vladomirovich
in the eleventh century, allows the relatives of a murdered man either
to kill the murderer or to accept a _wer-gild_ from him. The district,
moreover, in which a homicide occurs is liable to a fine, unless
the victim is an unknown stranger: as such, there are none to claim
compensation for him, he is outside of all family organization, and the
law has no protection for him.[9] In Poland, the laws in force until
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