Alfonso’s admiration of the Roman law led him to borrow much from it rather than from the Gothic code, though both are represented in the provisions which he established. Thus, except in accusations of treason, no one of noble blood could be tortured, nor a doctor of laws or other learning, nor a member of the king’s council, or that of any city or town, except for official forgery, nor a pregnant woman, nor a child under fourteen years of age.[1483] So, when several accomplices were on trial, the torturer was directed to commence with the youngest and worst trained, as the truth might probably be more readily extracted from him.[1484] The provision, also, that when a master, or mistress, or one of their children was found dead at home, all the household slaves were liable to torture in the search for the murderer, bears a strong resemblance to the cruel law of the Romans, which condemned them to death in case the murderer remained undiscovered.[1485]
The regulations concerning the torture of slaves are founded, with little variation, on the Roman laws. Thus, the evidence of a slave was only admissible under torture, and no slave could be tortured to prove the guilt of a present or former owner, nor could a freedman, in a case concerning his patron, subject to the usual exceptions which we have already seen. The excepted crimes enumerated by Alfonso are seven, viz.: adultery, embezzlement of the royal revenues by tax collectors, high treason, murder of a husband or wife by the other, murder of a joint owner of a slave by his partner, murder of a testator by a legatee, and coining. With the slave, as with the freeman, all testimony under torture required subsequent confirmation.[1486]
There is one noteworthy innovation, however, in the Partidas which was subsequently introduced widely into the torture codes of Europe, and which, in theory at least, greatly extended their sphere of action. This was the liability of freemen as witnesses. When a man’s evidence was vacillating and contradictory, so as to afford reasonable suspicion that he was committing perjury, all criminal judges were empowered to subject him to torture, so as to ascertain the truth, provided always that he was of low condition, and did not belong to the excepted classes.[1487]
With all this, there are indications that Alfonso designed rather to restrict than to extend the use of torture, and, if his general instructions could have been enforced, there must have been little occasion for its employment under his code. In one passage he directs that when the evidence is insufficient to prove a charge, the accused, if of good character, must be acquitted; and in another he orders its application only when common report is adverse to a prisoner, and he is shown to be a man of bad repute.[1488] Besides, an accuser who failed to prove his charge was always liable to the lex talionis, unless he were prosecuting for an offence committed on his own person, or for the murder of a relative not more distant than a brother or sister’s child.[1489] The judge, moreover, was strictly enjoined not to exceed the strict rules of the law, nor to carry the torture to a point imperilling life or limb. If he deviated from these limits, or acted through malice or favoritism, he was liable to a similar infliction on his own person, or to a penalty greater than if he were a private individual.[1490] The liability of witnesses was further circumscribed by the fact that in cases involving corporal punishment, no one could be forced to bear testimony who was related to either of the parties as far as the fourth degree of consanguinity, in either the direct or collateral lines, nor even when nearly connected by marriage, as in the case of fathers-in-law, step-children, etc.[1491] Orders to inflict torture, moreover, were one of the few procedures which could be appealed from in advance.[1492] Several of these limitations became generally adopted through Europe. We shall see, however, that they afforded little real protection to the accused, and it is more than probable that they received as little respect in Spain as elsewhere.
There were many varieties of torture in use at the period, but Alfonso informs us that only two were commonly employed, the scourge and the strappado, which consisted in hanging the prisoner by the arms while his back and legs were loaded with heavy weights.[1493] The former of these, however, seems to be the only one alluded to throughout the code.
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 without a formal decision signed unanimously by all three. In 1534 Charles V. called attention to the neglect of this rule, whereby the accused was deprived of the right of appeal, and he ordered that it should be strictly observed in future—regulations which duly maintained their place on the statute book as long as the use of torture was continued.[1498]
Many varieties were in use, but the most common were the strappado and pouring water down the throat; but when the accused was so weak as to render these dangerous, fire was applied to the soles of the feet; and the use of the scourge was not unusual. As in the ancient laws, the owner of slaves was entitled to compensation when his bondmen were unjustly tortured. If there was no justification for it, he was reimbursed in double the estimated value; if the judge exceeded the proper measure of torment, he made it good to the owner with another slave.[1499]
Whatever limitations may theoretically have been assigned to the application of torture, however, it is probable that they received little respect in practice. Simancas, Bishop of Badajos, who was a little anterior to Villadiego, speaks of it as a generally received axiom that scarcely any criminal accusation could be satisfactorily tried without torture.[1500] This is confirmed by the account recently discovered by Bergenroth of the secret history of the execution of Don Carlos, for, whether it be authentic or not, it shows how thoroughly the use of torture had interpenetrated the judicial system of Spain. It states that when Philip II. determined to try his wretched son for the crime of encouraging the rebellious movements in the Netherlands, and the prince denied the offence, torture was applied until he fainted, and, on recovering his senses, consented to confess in order to escape the repetition which was about to be applied. It is hardly to be believed that even a Spanish imagination could invent the dark and terrible details of this dismal story; and even if it be not true, its author must have felt that such an incident was too probable to destroy its vraisemblance.
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]