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
At the same time, Castilian justice kept itself free from one of the
worst abuses which, as we shall see hereafter, grew out of the use of
torture, in the secret inquisitorial process which established itself
almost everywhere. A law of Alfonso XI. issued in 1325 peremptorily
ordered that the accused should not be denied the right to know the
contents of the inquest made with respect to him, and that the names of
the witnesses should be communicated to him so that he could defend
himself freely and have all the means to which he was entitled of
establishing his innocence. Ferdinand and Isabella, moreover, in 1480,
decreed that all who desired counsel should be allowed the privilege,
those who were poor being furnished at the public expense, and no
torture could be inflicted before this was complied with. These laws,
which offer so creditable a contrast to the legislation of other lands,
remained in force and were embodied in the Recopilacion.[1501]
CHAPTER V.
CARLOVINGIAN AND FEUDAL LAW.
In turning to the other barbarian races which inherited the fragments
of the Roman empire, we find that the introduction of torture as
a recognized and legal mode of investigation was long delayed.
Under the Merovingians, as we have seen, its employment, though not
infrequent, was exceptional and without warrant of law. When the slow
reconstruction of society at length began, the first faint trace
of torture is to be found in a provision respecting the crimes of
sorcery and magic. These were looked upon with peculiar detestation,
as offences against both God and man. It is no wonder then if the
safeguards which the freeman enjoyed under the ordinary modes of
judicial procedure were disregarded in the cases of those who violated
every law, human and divine. The legislation of Charlemagne, indeed,
was by no means merciful in its general character. His mission was to
civilize, if possible, the savage and turbulent races composing his
empire, and he was not overnice in the methods selected to accomplish
the task. Still, he did not venture, even if he desired, to prescribe
torture as a means of investigation, except in the case of suspected
sorcerers, for whom, moreover, it is ordered indirectly rather than
openly.[1502] Yet, by this time, the personal inviolability of the
freeman was gone. The infliction of stripes and of hideous mutilations
is frequently directed in the Capitularies, and even torture and
banishment for life are prescribed as a punishment for insulting
bishops and priests in church.[1503]
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