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
As a whole, the Partidas were too elaborate and too much in advance
of the wants of the age to be immediately successful as a work of
legislation, and they were not confirmed by the Córtes until 1348. In
the Ordenamiento de Alcalà of Alfonso XI., issued in-that year, they
are referred to as supplying all omissions in subsequent codes.[1494]
It is probable that in his system of torture Alfonso the Wise merely
regulated and put into shape the customs prevalent in his territories,
for the changes in it which occurred during the succeeding three or
four centuries are merely such as can be readily explained by the
increasing influence of the revived Roman jurisprudence, and the
introduction of the doctrines of the Inquisition with respect to
criminal procedures. In the final shape which the administration of
torture assumed in Castile, as described by Villadiego, an eminent
legist writing about the year 1600, it was only employed when the proof
was strong, and yet not sufficient for conviction. No allusion is made
to the torture of witnesses, and Villadiego condemns the cruelty of
some judges who divide the torture into three days in order to render
it more effective, since, after a certain prolongation of torment, the
limbs begin to lose their sensibility, which is recovered after an
interval, and on the second and third days they are more sensitive than
at first. This he pronounces rather a repetition than a continuation
of torture, and repetition was illegal unless rendered necessary by
the introduction of new testimony.[1495] As in the thirteenth century,
nobles, doctors of law, pregnant women, and children under fourteen
were not liable, except in cases of high treason and some other
heinous offences. The clergy also were now exempted, unless previously
condemned as infamous, and advocates engaged in pleading enjoyed a
similar privilege. With the growth of the Inquisition, however, heresy
had now advanced to the dignity of a crime which extinguished all
prerogatives, for it was held to be a far more serious offence to be
false to Divine than to human majesty.[1496] The Partidas allow torture
in the investigation of comparatively trivial offences, but Villadiego
states that it should be employed only in the case of serious crimes,
entailing bodily punishment more severe than the torture itself,
and torture was worse than the loss of the hands. Thus, when only
banishment, fines, or imprisonment were involved, it could not be
used. The penalties incurred by judges for its excessive or improper
application were almost identical with those prescribed by Alfonso,
and the limitation that it should not be allowed to endanger life or
limb was only to be exceeded in the case of treason, when the utmost
severity was permissible.[1497] In 1489 Ferdinand and Isabella had
directed that no criminal case should be heard by less than three
alcaldes or judges sitting together, and torture could not be employed
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