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
Variations likewise occur arising from the nature of the case and the
character of the plaintiff. Thus in the Scottish law of the twelfth
century, in a criminal charge, a man could defend himself against his
lord with eleven men of good reputation, but if the king were the
accuser, twenty-four were requisite, who were all to be his peers,
while in a civil case twelve were sufficient.[105] So in the burgher
laws of David I., ordinary cases between citizens were settled with
ten conjurators, but eleven were necessary if the king were a party,
or if the matter involved the life, limb, or lands of one of the
contestants; and in cases occurring between a citizen and a countryman,
each party had to provide conjurators of his own class.[106] In the
complicated rules for compurgation which form the basis of the Welsh
jurisprudence, there are innumerable details of this nature. We have
seen that for some crimes many hundred _raith-men_ were required,
while similar numbers were enjoined in some civil suits respecting
real property.[107] From this the number diminishes in proportion to
the gravity of the case, as is well illustrated by the provisions for
denying the infliction of a bruise. If the mark remained until the
ninth day, the accused could deny it with “two persons of the same
privilege as himself;” if it remained until the eighteenth day, the
oaths of three conjurators were necessary; if till the twenty-seventh
day, four _raith-men_ were required.[108]
The character of the _raith-men_ also affected the number demanded.
Thus, in a collection of Welsh laws of the fifteenth century there
is an explanation of the apparent anomaly that privity to theft
or homicide required for its defence a vastly greater number of
compurgators than the commission of the crime itself. The large
bodies prescribed for the former consisted simply of any men that
could be had—of course within the recognized grades of kindred—while,
for the latter, rules of varying complexity were laid down. Thus, of
the twenty-four required for theft, in some texts it is prescribed
that two-thirds are to be of the nearest paternal kin, and one-third
of the nearest maternal; or, again, one-half _nod-men_.[109] So, in
accusations of homicide, the same proportions of paternal and maternal
kindred were required, all were to be proprietors in the country
of the _raith_, and three, moreover, were to be men under vows of
abstinence from linen, horses, and women, besides a proper proportion
of _nod-men_.[110]
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