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 personal independence of the freeman is one of the distinguishing
characteristics of all the primitive Teutonic institutions. Corporal
punishments for him were unknown to the laws. The principal resource
for the repression of crime was by giving free scope to the vengeance
of the injured party, and by providing fixed rates of composition by
which he could be bought off. As the criminal could defend himself
with the sword against the _faida_ or feud of his adversary, or could
compound for his guilt with money, the suggestion of torturing him to
extort a confession would seem an absurd violation of all his rights.
Crimes were regarded solely as injuries to individuals, and the idea
that society at large was interested in their discovery, punishment,
and prevention, was entirely too abstract to have any influence on the
legislation of so barbarous an age.
Accordingly, the codes of the Feini, the Ripuarians, the Alamanni, the
Angli and Werini, the Frisians, the Saxons, and the Lombards contain no
allusion to the employment of torture under any circumstances; and such
few directions for its use as occur in the laws of the Salien Franks,
of the Burgundians, and of the Baioarians, do not conflict with the
general principle.
The personal inviolability which shielded the freeman cast no
protection over the slave. He was merely a piece of property, and
if he were suspected of a crime, the readiest and speediest way to
convict him was naturally adopted. His denial could not be received
as satisfactory, and the machinery of sacramental purgation or the
judicial duel was not for him. If he were charged with a theft at
home, his master would undoubtedly tie him up and flog him until he
confessed, and if the offence were committed against a third party, the
same process would necessarily be adopted by the court. Barbarian logic
could arrive at no other mode of discovering and repressing crime among
the friendless and unprotected, whose position seemed to absolve them
from all moral responsibility.
The little that we know of the institutions of the ancient Gauls
presents us with an illustration of the same principle developed in a
somewhat different direction. Cæsar states that, when a man of rank
died, his relatives assembled and investigated the circumstances of his
death. If suspicion alighted upon his wives, they were tortured like
slaves, and if found guilty they were executed with all the refinements
of torment.[1457]
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account