Where a slave is charged with a crime, the judge shall first notify the master, superintendent, or agent, who has control of the accused, and order him to produce the slave in court; and should he refuse to do so, the governor of the city, or the judge may compel him to produce said slave. If the master, or he who has charge of his affairs, cannot be found, the slave shall be arrested and tried by the judge.
THE GLORIOUS FLAVIUS CHINTASVINTUS, KING.
II. For what Offences, and in what Manner, Freeborn Persons shall be put to the Torture.
If moderation is displayed in the treatment of crimes, the wickedness of criminals can never be restrained. Therefore, if anyone should, in behalf of the king or the people, bring an accusation of homicide or adultery against a person equal to him in rank, or in palatine dignity, he who thus seeks the blood of another shall first have an opportunity to prove what he alleges. And if he cannot prove it in the presence of the king, or those appointed by the royal authority, an accusation shall be drawn up in writing, and signed by three witnesses; and the accused person may then be put to the question.
If the latter, after undergoing the torture, should prove to be innocent, the accuser shall at once be delivered up to him as a slave, to be disposed of at his will, except that he shall not be deprived of life. But if he should be willing to make a compromise with his accuser, he may accept from the latter as large a sum as may compensate him for the sufferings he has endured. The judge shall take the precaution to compel the accuser to specifically describe the alleged offence, in writing; and after he has done so, and presented it privately to the judge, the torture shall proceed; and if the confession of him who is subjected to the torture should correspond with the terms of the accusation, his guilt shall be considered to be established. But if the accusation should allege one thing, and the confession of the person tortured the opposite, the accuser must undergo the penalty hereinbefore provided; because persons often accuse themselves of crime while being tortured. But if the accuser, before he has secretly given the written accusation to the judge as aforesaid, should, either in his own proper person, or by anyone else, inform the party of what he is accused, then it shall not be lawful for the judge to subject the latter to torture, because the alleged offence has become publicly known. This rule shall also apply to all other freeborn persons. But if the accusation should not be that of a capital crime, but merely of theft, or of some minor breach of the law, nobles, or persons of superior rank, such as the officials of our palace, shall, upon such an accusation, under no circumstances, be put to the question; and if proof of the alleged offence is wanting, he who is accused must declare his innocence under oath.
All persons of inferior rank, and freeborn persons, when accused of theft, homicide, or any other crime, shall not be tortured upon such an accusation, unless the property involved is worth more than fifty solidi. But if the property is of less value than fifty solidi, and the accused is convicted upon legal testimony, he shall be compelled to make restitution, as prescribed by other laws; or if he should not be convicted, after purging himself by oath he shall receive the satisfaction granted by the law for those who have suffered from an improper demand for torture.
We hereby especially provide that a lowborn person shall not presume to accuse a noble or one of higher rank than himself; but if such a person should accuse another of crime, and proof of the same should be wanting, the person accused shall at once purge himself of all guilt by oath, and swear that he never took, nor has in his possession, the property on account of which he was prosecuted; and oath having been made, as aforesaid, he who brought the false accusation shall undergo the penalty for the same, as prescribed by a former law. But whether the person subjected to the torture is a noble, one of inferior rank, or a freeman, he must be tortured in the presence of the judge, or of certain respectable men appointed by him; and in such a way as not to lose his life, or the use of any of his limbs; and because the torture must be applied for the space of three days, if, as the result of accident, or through the malice of the judge, or the treachery of anyone else, he who is subjected to it should die; or if the judge, having been corrupted by the bribes of the adversary of the accused, should not prohibit the infliction of such torments as are liable to produce death; the judge himself shall be delivered up to the nearest relatives of the accused person, that, on account of his injustice, he may undergo at their hands the same sufferings which he unlawfully inflicted upon the accused.
If, however, he should declare himself under oath to be innocent, and witnesses who were present should swear that death did not result from any malice, treachery, or corruption of which he was guilty, but only as a result of the torture itself; for the reason that the said judge did not use his discretion to prevent excessive cruelty, he shall be compelled to pay fifty solidi to the heirs of the deceased; and if he should not have sufficient property to pay said sum, he shall be delivered up as a slave to the nearest heirs of the former. The accuser shall be surrendered to the nearest relatives of the deceased, and shall suffer the penalty of death, which he suffered who perished through his accusation.[32]
ANCIENT LAW.
III. For what Offences, and in what manner, Slaves, of Either Sex, shall be put to the Torture, on account of the Crimes of their Masters.