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
not long before by Frederic II., which subsequently became almost
universal throughout Europe, whereby the prohibition of conviction on
extorted confessions was eluded. After confession under torture, the
prisoner was remanded to his prison. On being subsequently brought
before the judge he was again interrogated, when, if he persisted
in his confession, he was condemned. If he recanted, he was again
tortured; and, if the crime was grave, the process could be repeated a
third time; but, throughout all, he could not be convicted unless he
made a free confession apart from the torture. Even after conviction,
moreover, if the judge found reason to believe that the confession
was the result of fear of the torture, or of rage at being tortured,
or of insanity, the prisoner was entitled to an acquittal.[1481] The
humane interference of the Church thus resulted only in a redoublement
of cruelty; and the system once introduced, speedily tended to break
down the limits imposed on it. In a little more than half a century
after the death of Alfonso, judges were in the habit of not contenting
themselves with three inflictions, but continued the torture as long
as the prisoner confessed on the rack and retracted his confession
subsequently.[1482]
Alfonso’s admiration of the Roman law led him to borrow much from
it rather than from the Gothic code, though both are represented in
the provisions which he established. Thus, except in accusations of
treason, no one of noble blood could be tortured, nor a doctor of
laws or other learning, nor a member of the king’s council, or that
of any city or town, except for official forgery, nor a pregnant
woman, nor a child under fourteen years of age.[1483] So, when several
accomplices were on trial, the torturer was directed to commence with
the youngest and worst trained, as the truth might probably be more
readily extracted from him.[1484] The provision, also, that when
a master, or mistress, or one of their children was found dead at
home, all the household slaves were liable to torture in the search
for the murderer, bears a strong resemblance to the cruel law of the
Romans, which condemned them to death in case the murderer remained
undiscovered.[1485]
The regulations concerning the torture of slaves are founded, with
little variation, on the Roman laws. Thus, the evidence of a slave
was only admissible under torture, and no slave could be tortured to
prove the guilt of a present or former owner, nor could a freedman,
in a case concerning his patron, subject to the usual exceptions
which we have already seen. The excepted crimes enumerated by Alfonso
are seven, viz.: adultery, embezzlement of the royal revenues by tax
collectors, high treason, murder of a husband or wife by the other,
murder of a joint owner of a slave by his partner, murder of a testator
by a legatee, and coining. With the slave, as with the freeman, all
testimony under torture required subsequent confirmation.[1486]
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