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
Yet with all these influences at work, the ancestral customs maintained
their ground long and stubbornly. It is not until the latter half of
the thirteenth century that the first faint traces of legalized torture
are to be found in France, at whose University of Paris for more than
a hundred years the study of the Pandects had become the absorbing
topic, and where the constantly increasing power of the crown found
its most valuable instruments in the civil lawyers, and its surest
weapon against feudalism in the extension of the royal jurisdiction.
In Germany, the progress was even slower. The decline of the central
authority, after the death of Frederic Barbarossa, rendered any
general change impossible, and made the absolutist principles of the
imperial jurisprudence especially distasteful to the crowd of feudal
sovereigns, whose privileges were best supported by perpetuating
organized anarchy. The early codes, therefore, the Sachsenspiegel, the
Schwabenspiegel, the Kayser-Recht, and the Richstich Landrecht, which
embodied the judicial proceedings of the Teutonic nations from the
thirteenth to the fifteenth centuries, seem to know no other mode of
deciding doubtful questions than sacramental purgation and the various
forms of ordeal. During the latter portion of this period, it is true,
torture begins to appear, but it is an innovation.[1538]
The first indications of the modern use of torture show distinctly
that its origin is derived from the civil law. In the Latin Kingdoms
of the East, the Teutonic races were brought into contact with the
remains of the old civilization, impressive even in its decrepitude.
It was natural that, in governing the motley collection of Greeks,
Syrians, and Franks, for whom they had to legislate, they should adopt
some of the institutions which they found in force amid their new
possessions, and it is only surprising that torture did not form a
more prominent feature in their code. The earliest extant text of the
_Assises de Jerusalem_ is not older than the thirteenth century, and
the blundering and hesitating way in which it recognizes, in a single
instance, the use of torture shows how novel was the idea of such
procedure to the feudal barons, and how little they understood the
principles governing its application. When a murderer was caught in the
act by two witnesses, he could be promptly hanged on their testimony,
if they were strangers to the victim. If, however, they were relatives,
their testimony was held suspect, and the confession of the accused
was requisite to his conviction. To obtain this, he was subjected to
torture for three days; if he confessed, he was hanged; if obdurate,
he was imprisoned for a year and a day, with the privilege of clearing
himself during that period by the ordeal of the red-hot iron. If he
declined this, and if during his confinement no additional evidence was
procured, he was acquitted, and could not be again appealed for the
murder.[1539]
Public-domain text, read in full here on John Shaqi.
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