His kingdom was too evanescent to consolidate and perfect its institutions or to accumulate any extended body of jurisprudence. What little exists, however, manifests a compromise between the spirit of the Barbarian tribes of the period and that of the conquered mistress of the world. The Edict of Theodoric does not allude to the torture of freemen, and it is probable that the free Ostrogoth could not legally be subjected to it. With respect to slaves, its provisions seem mainly borrowed from the Roman law. No slave could be tortured against a third party for evidence unless the informer or accuser was prepared to indemnify the owner at his own valuation of the slave. No slave could be tortured against his master, but the purchase of a slave to render his testimony illegal was pronounced null and void; the purchase money was returned, and the slave was tortured. The immunity of freedmen is likewise shown by the cancelling of any manumission conferred for the purpose of preventing torture for evidence.[1466] Theodoric, however, allowed his Roman subjects to be governed by their ancient laws, and he apparently had no repugnance to the use of torture when it could legally be inflicted. Thus he seems particularly anxious to ferret out and punish sorcerers, and in writing to the Prefect and Count of Rome he urges them to apprehend certain suspected parties, and try them by the regular legal process, which, as we have seen, by the edicts of Constantius and his successors, was particularly severe in enjoining torture in such cases, both as a means of investigation and of punishment.[1467]
On the other hand, the Wisigoths founded a permanent state, and as they were the only race whose use of torture was uninterrupted from the period of their settlement until modern times, and as their legislation on the subject was to a great extent a model for that of other nations, it may be worth while to examine it somewhat closely.
The earliest code of the Wisigoths is supposed to have been compiled by Eurik, in the middle of the fifth century, but it was subsequently much modified by recensions and additions. It was remoulded by Chindaswind and Recaswind about the middle of the seventh century, and it has reached us only in this latest condition, while the MSS. vary so much in assigning the authorship of the various laws that but little reliance can be placed upon the assumed dates of most of them. Chindaswind, moreover, in issuing his revised code, prohibited for the future the use of the Roman law, which had previously been in force among the subject populations, under codes specially prepared for them by order of Alaric II. Thus the Wisigothic laws, as we have them, are not laws of race, like the other Barbarian codes, but territorial laws carefully digested for a whole nation by men conversant alike with the Roman and with their own ancestral jurisprudence.
It is therefore not surprising to find in them the use of torture legalized somewhat after the fashion of the imperial constitutions, and yet with some humane modifications and restrictions. Slaves were liable to torture under accusation, but the accuser had first to make oath that he was actuated by neither fraud nor malice in preferring the charge; and he was further obliged to give security that he would deliver to the owner another slave of equal value if the accused were acquitted. If an innocent slave were crippled in the torture, the accuser was bound to give two of like value to the owner, and the sufferer received his freedom. If the accused died under the torture, the judge who had manifested so little feeling and discretion in permitting it was also fined in a slave of like value, making three enuring to the owner, and careful measures were prescribed to insure that a proper valuation was made. If the accuser was unable to meet the responsibility thus incurred, he was himself forfeited as a slave. Moreover, the owner was always at liberty to save his slave from the torture by proving his innocence otherwise if possible; and if he succeeded, the accuser forfeited to him a slave of equal value, and was obliged to pay all the costs of the proceedings.[1468]
Freedmen were even better protected. They could only be tortured for crimes of which the penalties exceeded a certain amount, varying with the nature of the freedom enjoyed by the accused. If no confession were extorted, and the accused were crippled in the torture, the judge and the accuser were both heavily fined for his benefit, and if he died, the fines were paid to his family.[1469]
There could have been little torturing of slaves as witnesses, for in general their evidence was not admissible, even under torture, against any freeman, including their masters. The slaves of the royal palace, however, could give testimony as though they were freemen,[1470] and, as in the Roman law, there were certain excepted crimes, such as treason, adultery, homicide, sorcery, and coining, in accusations of which slaves could be tortured against their masters, nor could they be preserved by manumission against this liability.[1471]
As regards freemen, the provisions of different portions of the code do not seem precisely in harmony, but all of them throw considerable difficulties in the way of procedures by torture. An early law directs that, in cases of theft or fraud, no one shall be subjected to torture unless the accuser bring forward the informer, or inscribe himself with three sureties to undergo the lex talionis in case the accused prove innocent. Moreover, if no confession were extorted, the informer was to be produced. If the accuser could not do this, he was bound to name him to the judge, who was then to seize him, unless he were protected by some one too powerful for the judicial authority to control. In this event it was the duty of the judge to summon the authorities to his aid, and in default of so doing he was liable for all the damages arising from the case. The informer, when thus brought within control of the court, was, if a freeman, declared infamous, and obliged to pay ninefold the value of the matter in dispute; if a slave, sixfold, and to receive a hundred lashes. If the freeman were too poor to pay the fine, he was adjudged as a slave in common to the accuser and the accused.[1472]
A later law, issued by Chindaswind, is even more careful in its very curious provisions. No accuser could force to the torture a man higher in station or rank than himself. The only cases in which it could be inflicted on nobles were those of treason, homicide, and adultery, while for freemen of humbler position the crime must be rated at a fine of 500 solidi at least. In these cases, an open trial was first prescribed. If this were fruitless, the accuser who desired to push the matter bound himself in case of failure to deliver himself up as a slave to the accused, who could maltreat him at pleasure, short of taking his life, or compound with him at his own valuation of his sufferings. The torture then might last for three days; the accuser himself was the torturer, subject to the supervision of the judge, and might inflict torment to any extent that his ingenuity could suggest, short of producing permanent injury or death. If death resulted, the accuser was delivered to the relatives of the deceased to be likewise put to death; the judge who had permitted it through collusion or corruption was exposed to the same fate, but if he could swear that he had not been bribed by the accuser, he was allowed to escape with a fine of 500 solidi. A very remarkable regulation, moreover, provided against false confessions extorted by torment. The accuser was obliged to draw up his accusation in all its details, and submit it secretly to the judge. Any confession under torture which did not agree substantially with this was set aside, and neither convicted the accused nor released the accuser from the penalties to which he was liable.[1473]
Under such a system, strictly enforced, few persons would be found hardy enough to incur the dangers of subjecting an adversary to the rack. As with the Franks, however, so among the Wisigoths, the laws were not powerful enough to secure their own observance. The authority of the kings grew gradually weaker and less able to repress the assumptions of ambitious prelates and unruly grandees, and it is easy to imagine that in the continual struggle all parties sought to maintain and strengthen their position by an habitual disregard of law. At the Thirteenth Council of Toledo, in 683, King Erwig, in his opening address, alludes to the frequent abuse of torture in contravention of the law, and promises a reform. The council, in turn, deplores the constantly recurring cases of wrong and suffering wrought “regiæ subtilitatis astu vel profanæ potestatis instinctu,” and proceeds to decree that in future no freeman, noble, or priest shall be tortured unless regularly accused or indicted, and properly tried in public; and this decree duly received the royal confirmation.[1474]
As the Goths emerge again into the light of history after the Saracenic conquest, we find these ancient laws still in force among the descendants of the refugees who had gathered around Don Pelayo. The use of the Latin tongue gradually faded out among them, and about the twelfth or thirteenth century the Wisigothic code was translated into the popular language, and this Romance version, known as the Fuero Juzgo, long continued the source of law in the Peninsula. In this, the provisions of the early Gothic monarchs respecting torture are textually preserved, with two trifling exceptions, which may reasonably be regarded as scarcely more than mere errors of copyists.[1475] Torture was thus maintained in Spain as an unbroken ancestral custom, and the earliest reference which I have met with of it in mediæval jurisprudence occurs in 1228, when Don Jayme el Conquistador of Aragon forbade his representatives from commencing proceedings by its employment without special orders.[1476] When Alfonso the Wise, about the middle of the thirteenth century, attempted to revise the jurisprudence of his dominions, in the code known as Las Siete Partidas, which he promulgated, he only simplified and modified the proceedings, and did not remove the practice. Although he proclaimed that the person of man is the noblest thing of earth—“La persona del home es la mas noble cosa del mundo”[1477]—he held that stripes and other torture inflicted judicially were no dishonor even to Spanish sensitiveness.[1478] Asserting that torture was frequently requisite for the discovery of hidden crimes,[1479] he found himself confronted by the Church, which taught, as we shall see hereafter, that confessions extorted under torture were invalid. To this doctrine he gave his full assent,[1480] and then, to reconcile these apparently incompatible necessities, he adopted an expedient partially suggested 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]