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
This system introduced into legal proceedings a commercial spirit
which seems strangely at variance with the savage heroism commonly
attributed to our barbarian ancestors. In the translation by Mr. Dasent
of the old Icelandic Saga of Burnt Njal is vividly set forth the
complex procedure which arose from the development of these principles,
whereby suits could be sold and assigned by one party to another, and a
plaintiff with a promising claim for damages would part with it to some
speculator who undertook the chances of the suit; or, if the prospects
were not encouraging, he would pay some shrewd lawyer or mighty
warrior to prosecute it in his stead. As either party in the primitive
Icelandic code could at any moment interrupt the proceedings with a
challenge to single combat, or a powerful pleader might collect his
friends for a raid on the Althing, and thus break up the court, this
traffic in suits was a speculation well fitted to vary the monotony of
a sea-rover’s life on shore.
In the application of this principle of compensation the solidarity
of the family bore a part as conspicuous as in the alternative of
private warfare. The kindred of the offender were obliged to contribute
shares proportionate to their degrees of relationship; while those of
the man who was wronged received respective percentages calculated on
the same basis. Thus the most ancient Barbarian code that has reached
us—that of the Feini, or primitive Irish—in a fanciful quadripartite
enumeration of the principles in force in levying fines, alludes to
the responsibility of kindred—“And because there are four things for
which it is levied: ‘cin’ (one’s own crime), and ‘tobhach’ (the crime
of a near kinsman), ‘saighi’ (the crime of a middle kinsman), and the
crime of a kinsman in general.”[15] A very complete example of the
development of this system is to be found in the Icelandic legislation
of the twelfth century, where the fines exacted diminish gradually, as
far as the relatives in the fifth degree on both sides, each grade of
the criminal’s family paying its rate to the corresponding grade of the
sufferer’s kindred.[16] When, however, the next of kin were females,
and were thus incompetent to prosecute for murder, the person who
undertook that office was rewarded with one-third of the fine.[17] It
was not until about 1270 that King Haco, in his unsuccessful attempt
to reform these laws, ventured to decree that in cases of murder the
blood-money should not be divided among the family of the victim, but
should all be paid to the heir.[18] On the other hand, in Denmark, Eric
VII., in 1269, relieved the kindred of the murderer from contributing
to the _wer-gild_, although it continued to be divided among the
relatives of the slain.[19]
Public-domain text, read in full here on John Shaqi.
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