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
His kingdom was too evanescent to consolidate and perfect its
institutions or to accumulate any extended body of jurisprudence. What
little exists, however, manifests a compromise between the spirit of
the Barbarian tribes of the period and that of the conquered mistress
of the world. The Edict of Theodoric does not allude to the torture of
freemen, and it is probable that the free Ostrogoth could not legally
be subjected to it. With respect to slaves, its provisions seem mainly
borrowed from the Roman law. No slave could be tortured against a third
party for evidence unless the informer or accuser was prepared to
indemnify the owner at his own valuation of the slave. No slave could
be tortured against his master, but the purchase of a slave to render
his testimony illegal was pronounced null and void; the purchase money
was returned, and the slave was tortured. The immunity of freedmen is
likewise shown by the cancelling of any manumission conferred for the
purpose of preventing torture for evidence.[1466] Theodoric, however,
allowed his Roman subjects to be governed by their ancient laws, and
he apparently had no repugnance to the use of torture when it could
legally be inflicted. Thus he seems particularly anxious to ferret
out and punish sorcerers, and in writing to the Prefect and Count of
Rome he urges them to apprehend certain suspected parties, and try
them by the regular legal process, which, as we have seen, by the
edicts of Constantius and his successors, was particularly severe in
enjoining torture in such cases, both as a means of investigation and
of punishment.[1467]
On the other hand, the Wisigoths founded a permanent state, and as they
were the only race whose use of torture was uninterrupted from the
period of their settlement until modern times, and as their legislation
on the subject was to a great extent a model for that of other nations,
it may be worth while to examine it somewhat closely.
The earliest code of the Wisigoths is supposed to have been compiled
by Eurik, in the middle of the fifth century, but it was subsequently
much modified by recensions and additions. It was remoulded by
Chindaswind and Recaswind about the middle of the seventh century,
and it has reached us only in this latest condition, while the MSS.
vary so much in assigning the authorship of the various laws that but
little reliance can be placed upon the assumed dates of most of them.
Chindaswind, moreover, in issuing his revised code, prohibited for the
future the use of the Roman law, which had previously been in force
among the subject populations, under codes specially prepared for them
by order of Alaric II. Thus the Wisigothic laws, as we have them, are
not laws of race, like the other Barbarian codes, but territorial laws
carefully digested for a whole nation by men conversant alike with the
Roman and with their own ancestral jurisprudence.
Public-domain text, read in full here on John Shaqi.
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