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 policy of the law in protecting masters from the evidence of
their tortured slaves varied at different periods. From an expression
of Tacitus, it would seem not to have been part of the original
jurisprudence of the Republic, but to have arisen from a special
decree of the Senate. In the early days of the Empire, while the
monarch still endeavored to veil his irresponsible power under the
forms of law, and showed his reverence for ancient rights by evading
them rather than by boldly subverting them, Tiberius, in prosecuting
Libo and Silanus, caused their slaves to be transferred to the public
prosecutor, and was thus able to gratify his vengeance legally by
extorting the required evidence.[1424] Subsequent emperors were not
reduced to these subterfuges, for the principle became established that
in cases of _majestas_, even as the freeman was liable to torture,
so his slaves could be tortured to convict him;[1425] and as if to
show how utterly superfluous was the cunning of Tiberius, the respect
towards the master in ordinary affairs was carried to that point that
no slave could be tortured against a former owner with regard to
matters which had occurred during his ownership.[1426] On the other
hand, according to Ulpian, Trajan decided that when the confession of
a guilty slave under torture implicated his master, the evidence could
be used against the master, and this, again, was revoked by subsequent
constitutions.[1427] Indeed, it became a settled principle of law to
reject all incriminations of accomplices.
Having thus broken down the protection of the citizen against the
evidence of his slaves in accusations of treason, it was not difficult
to extend the liability to other special crimes. Accordingly we
find that, in 197, Septimius Severus specified adultery, fraudulent
assessment, and crimes against the state as cases in which the evidence
of slaves against their masters was admissible.[1428] The provision
respecting adultery was repeated by Caracalla in 214, and afterwards
by Maximus,[1429] and the same rule was also held to be good in cases
of incest.[1430] It is probable that this increasing tendency alarmed
the citizens of Rome, and that they clamored for a restitution of
their immunities, for, when Tacitus was elected emperor, in 275, he
endeavored to propitiate public favor by proposing a law to forbid
the testimony of slaves against their masters except in cases of
_majestas_.[1431] No trace of such a law, however, is found in the
imperial jurisprudence, and the collections of Justinian show that the
previous regulations were in full force in the sixth century.
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