[1812] Raguald. Ingermund. Leg. Suecor. Stockholmiæ, 1623.
[1813] Ll. Henrici I. cap. v. § 16.
A curious disregard of this principle occurs in the Welsh laws, which provide that when a thief is at the gallows, with the certainty of being hanged, his testimony as to his accomplices is to be received as sufficient without requiring it to be sworn to on a relic—the inseparable condition of all other evidence. By a singular inconsistency, however, the accomplice thus convicted was not to be hanged, but to be sold as a slave.—Dimetian Code, Bk. II. ch. v. § 9 (Owen I. 425).
[1814] Many interesting details on the influence of the Roman law upon that of England will be found in the learned work of Carl Güterbock, “Bracton and his Relation to the Roman Law,” recently translated by Brinton Coxe (Philadelphia, 1866). The subject is one which well deserves a more thorough consideration than it is likely to receive at the hands of English writers.
It is curious to observe that the crimen læsæ majestatis makes its appearance in Bracton (Lib. III. Tract. ii. cap. 3, § 1) about the middle of the thirteenth century, earlier than in France, where, as we have seen, the first allusion to it occurs in 1315. This was hardly to be expected, when we consider the widely different influences exerted upon the jurisprudence of the two countries by the Roman law.
[1815] The passage which has been relied on by lawyers is chap. xxx.: “Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut aliquo modo destruatur; nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ.” If the law just above quoted from the collection of Henry I. could be supposed to be still in force under John, then this might possibly be imagined to bear some reference to it; but it is evident that had torture been an existing grievance, such as outlawry, seizure, and imprisonment, the barons would have been careful to include it in their enumeration of restrictions. Moreover, Magna Charta was specially directed to curtail the royal prerogative, and at a later period was not held by any one to interfere with that prerogative whenever the king desired to test with the rack the endurance of his loving subjects.
[1816] Et come ascuns felons viendrount en Jugement respondre de lour felonie, volons que ils viegnent dechausses et descients sauns coiffe, et a teste descouverte, en pure lour cote hors de fers et de chescun manere de liens, ïssint que la peine ne lour toille nule manere de rason, selon par force ne lour estouva mye respondre forsque lour fraunche volunte.—Britton, chap. v.
[1817] Per volunté aussi se fait ceste pesché [homicide] si come per ceux qui painent home tant que il est gehist pur avouer pesché mortelment.—Horne, The Myrror of Justice, cap. I. sect. viii.—See also Fleta, Lib. I. cap. xxvi. § 5.
[1818] Ou faussement judgea Raginald ... ou issint; tant luy penia pur luy faire conoistre, approver il se conoist faussement aver pesché ou nient ne pescha.—Horne, cap. II. sect. xv.
[1819] Pike (Hist. of Crime in England I. 427) quotes a document of 1189 which seems indirectly to show that torture could be inflicted under an order of the king. The expression is somewhat doubtful, and as torture had not yet established itself anywhere in Europe as a judicial procedure the document alleged can hardly be received as evidence of its legality.