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
There were some general limitations imposed on the application of
torture, but they were hardly such as to prevent its abuse at the
hands of cruel or unscrupulous judges. Antoninus Pius set an example,
which modern jurists might well have imitated, when he directed that
no one should be tortured after confession to implicate others;[1437]
and a rescript of the same enlightened emperor fixes at fourteen
the minimum limit of age liable to torture, except in cases of
_majestas_, when, as we have seen, the law spared no one, for in the
imperial jurisprudence the safety of the monarch overrode all other
considerations.[1438] Women were spared during pregnancy.[1439]
Moderation was enjoined upon the judges, who were to inflict only such
torture as the occasion rendered necessary, and were not to proceed
further at the will of the accuser.[1440] No one was to be tortured
without the inscription of a formal accuser, who rendered himself
liable to the _lex talionis_, unless there were violent suspicions to
justify it;[1441] and Adrian reminded his magistrates that it should
be used for the investigation of truth, and not for the infliction of
punishment.[1442] Adrian further directed, in the same spirit, that
the torture of slave witnesses should only be resorted to when the
accused was so nearly convicted that it alone was required to confirm
his guilt.[1443] Diocletian ordered that proceedings should never be
commenced with torture, but that it might be employed when requisite to
complete the proof, if other evidence afforded rational belief in the
guilt of the accused.[1444]
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