CHAPTER V.

CARLOVINGIAN AND FEUDAL LAW.

In turning to the other barbarian races which inherited the fragments of the Roman empire, we find that the introduction of torture as a recognized and legal mode of investigation was long delayed. Under the Merovingians, as we have seen, its employment, though not infrequent, was exceptional and without warrant of law. When the slow reconstruction of society at length began, the first faint trace of torture is to be found in a provision respecting the crimes of sorcery and magic. These were looked upon with peculiar detestation, as offences against both God and man. It is no wonder then if the safeguards which the freeman enjoyed under the ordinary modes of judicial procedure were disregarded in the cases of those who violated every law, human and divine. The legislation of Charlemagne, indeed, was by no means merciful in its general character. His mission was to civilize, if possible, the savage and turbulent races composing his empire, and he was not overnice in the methods selected to accomplish the task. Still, he did not venture, even if he desired, to prescribe torture as a means of investigation, except in the case of suspected sorcerers, for whom, moreover, it is ordered indirectly rather than openly.[1502] Yet, by this time, the personal inviolability of the freeman was gone. The infliction of stripes and of hideous mutilations is frequently directed in the Capitularies, and even torture and banishment for life are prescribed as a punishment for insulting bishops and priests in church.[1503]

This apparent inconsistency is only a repetition of what we have seen in the Persian and Indian institutions, where torture was superfluous in the presence of other forms of proof, and in Greece and Rome where it makes its appearance in the absence of those forms. Though there was no theoretical objection to torture as a process of investigation, yet there was no necessity for its employment as a means of evidence. That the idea of thus using it in matters of great moment was not unfamiliar to the men of that age is evident when we find it officially stated that the accomplices of Bernard, King of Italy, in his rebellion against Louis le Débonnaire, in 817, on their capture confessed the whole plot without being put to the torture.[1504] Such instances, however, were purely exceptional. In ordinary matters, there was a complete system of attack and defence which supplemented all deficiencies of testimony in doubtful cases. Sacramental purgation, the wager of battle, and the various forms of vulgar ordeals were not only primæval customs suited to the feelings and modes of thought of the race, but they were also much more in harmony with the credulous faith inculcated by the Church, and the Church had by this time entered on the career of temporal supremacy which gave it so potent a voice in fashioning the institutions of European society. For all these, the ministrations of the ecclesiastic were requisite, and in many of them his unseen agency might prove decisive. On the other hand, the humane precepts which forbade the churchman from intervening in any manner in judgments involving blood precluded his interference with the torture chamber; and in fact, while torture was yet frequent under the Merovingians, the canons of various councils prohibited the presence of any ecclesiastic in places where it was administered.[1505] Every consideration, therefore, would lead the Church in the ninth century to prefer the milder forms of investigation, and to use its all-powerful influence in maintaining the popular belief in them. The time had not yet come when, as we shall see hereafter, the Church, as the spiritual head of feudal Christendom, would find the ordeal unnecessary and torture the most practicable instrumentality to preserve the purity of faith and the steadfastness of implicit obedience.

In the ninth century, moreover, torture was incompatible with the forms of judicial procedure handed down as relics of the time when every freeman bore his share in the public business of his sept. Criminal proceedings as yet were open and public. The secret inquisitions which afterwards became so favorite a system with lawyers did not then exist. The _mallum_, or court, was perhaps no longer held in the open air,[1506] nor were the freemen of the district constrained as of old to be present,[1507] but it was still free to every one. The accuser and his witnesses were confronted with the accused, and the criminal must be present when his sentence was pronounced.[1508] The purgatorial oath was administered at the altar of the parish church; the ordeal was a public spectacle; and the judicial duel drew thousands of witnesses as eager for the sight of blood as the Roman plebs. These were all ancestral customs, inspiring implicit reverence, and forming part of the public life of the community. To substitute for them the gloomy dungeon through whose walls no echo of the victim’s screams could filter, where impassible judges coldly compared the incoherent confession wrung out by insufferable torment with the anonymous accusation or the depositions of secret witnesses, required a total change in the constitution of society.

The change was long in coming. Feudalism arose and consolidated its forces on the ruins of the Carlovingian empire without altering the principles upon which the earlier procedures of criminal jurisdiction had been based. As the local dignitaries seized upon their fiefs and made them hereditary, so they arrogated to themselves the dispensation of justice which had formerly belonged to the central power, but their courts were still open to all. Trials were conducted in public upon well-known rules of local law and custom; the fullest opportunities were given for the defence; and a denial of justice authorized the vassal to renounce the jurisdiction of his feudal lord and seek a superior court.[1509]

Still, as under the Merovingians, torture, though unrecognized by law, was occasionally employed as an extraordinary element of judicial investigation, as well as a means of punishment to gratify the vengeance of the irresponsible and cruel tyrants who ruled with absolute sway over their petty lordships. A few such instances occur in the documents and chronicles of the period, but the terms in which they are alluded to show that they were regarded as irregular.

Thus, it is related of Wenceslas, Duke of Bohemia, in the early part of the tenth century, that he destroyed the gibbets and fearful instruments of torture wherewith the cruelty of his judges had been exercised, and that he never allowed them to be restored.[1510] An individual case of torture which occurred in 1017 has chanced to be preserved to us by its ending in a miracle, and being the occasion of the canonization of a saint. A pious pilgrim, reputed to belong to the royal blood of Scotland, while wandering on the marches between the Bavarians and the Moravians, was seized by the inhabitants on suspicion of being a spy, and, to extort a confession, was exposed to a succession of torments which ended in hanging him on a withered tree until he died. The falsity of the accusation and the sanctity of the victim were manifested by the uninterrupted growth of his hair and nails and the constant flowing of blood from a wound, while the dead tree suddenly put forth leaves and flowers. Margrave Henry of Bavaria had him reverently buried, and he was duly enrolled in the catalogue of saints.[1511] A letter of Gerard, Bishop of Cambrai, in 1025, relating how certain suspected heretics could not be forced by torment to confession, shows that ecclesiastics already were prepared, in spite of the received dogmas of the Church, to have recourse to such means when no others could be found to protect the purity of the faith.[1512] In the celebrated case, also, of the robbery of the church of Laon, about the year 1100, the suspected thief, after conviction by the cold water ordeal, was tortured by command of the bishop in order to make him surrender the sacred vessels which he had concealed. Basting with hot lard was tried unsuccessfully; he was then hanged by the neck and let down at intervals for nearly a whole day, and when life was almost extinct his resolution gave way and he agreed to discover the place where the valuables were hidden.[1513] When Charles the Good of Flanders was murdered in 1127, one of the assassins fled to Terouane, where he was discovered and forced by scourging to disclose the names of his accomplices.[1514] About 1130 at Petersberg, in Saxony, we are told of a shepherd tortured by his lord to extract money, and saved from suffering by an earnest prayer to St. Peter.[1515] When Richard I. of England was endeavoring to return through Germany from the crusade, it was by the torture of his page that the identity of the royal traveller was discovered, and he was delivered to his enemy the Duke of Austria.[1516]

These are evidently rather sporadic and exceptional cases than indications of any systematic introduction of the practice. A more significant allusion, however, is found in the reproof administered, about 1125, by Hildebert, Bishop of le Mans, to one of his priests, who had been concerned in the torture of a suspected thief, for the purpose of extracting a confession. Hildebert argues that the infliction of torture for confession is a matter for judicial decision and not of Church discipline, and therefore not fit for a clerk to be engaged in.[1517] This would seem to show that it occasionally was a recognized means of proof in the lay tribunals of the period, though as yet not favored by the Church. If so, no record of its introduction or evidence of its customary use has been preserved to us, though there is abundant evidence of its employment as a punishment and for the extortion of money.

As a punishment legally inflicted, we find it prescribed, in 1168, by Frederic Barbarossa in cases of petty thefts,[1518] and in the next century by Frederic II. as a penalty for high treason.[1519] Special cases, too, may be instanced, where its infliction on a large scale shows that the minds of men were not unfamiliar with its use. Thus when, in 1125, the inhabitants of Erfurt were guilty of some outrages on the imperial authority, and the town was besieged and captured by the Emperor Lothair, the chronicler relates that large numbers of the citizens were either killed, blinded, or tortured in various ways by the vindictive conqueror,[1520] and in 1129 he treated the citizens of Halle in the same manner.[1521]

Even towards the close of the thirteenth century, we find Rodolph of Hapsburg interfering in favor of a prisoner whom one of his nobles was afflicting with cruel torments. The Emperor, however, does not venture to command, but merely entreats that the tortures be suspended until he shall have an interview with the aggressor.[1522]

So summary and effective a mode of forcing the weak and unprotected to ransom themselves was not likely to be overlooked in those ages of violence, and though the extra-judicial use of torture is foreign to our purpose, yet, as showing how men educated themselves in its employment, it may be worth while to allude briefly to this aspect of the subject. Thus, Duke Swantopluck of Bohemia, in a marauding expedition into Hungary in 1108, caused to be racked or put to death all prisoners who could not purchase escape by heavy ransoms.[1523] At the same period, Germany is described to us by an eye-witness as covered with feudal chieftains who lived a life of luxury by torturing the miserable wretches that could scarce obtain bread and water for their own existence.[1524] In Spain, the same means were understood and employed by the savage nobles of that barbarous period.[1525] In England, the fearful anarchy which prevailed under King Stephen encouraged a similar condition of affairs. The baronial castles which then multiplied so rapidly became mere dens of robbers who ransacked the country for all who had the unfortunate reputation of wealth. From these they extracted the last penny by tortures; and the chronicler expatiates on the multiplicity and horrid ingenuity of the torments devised—suspension by the feet over slow fires; hanging by the thumbs; knotted ropes twisted around the head; crucet-houses, or chests filled with sharp stones, in which the victim was crushed; sachentages, or frames with a sharp iron collar preventing the wearer from sitting, lying, or sleeping; dungeons filled with toads and adders; slow starvation, &c. &c.[1526] Even in the more settled times of the close of the reign of Henry II. a case is recorded of a heavy fine inflicted on a man for illegally capturing and torturing a woman;[1527] under Richard I. an epistle of Clement III. refers to a knight who had confessed that he had tortured a priest and forced him to redeem himself with a large sum of money;[1528] and in 1210 King John seized all the Jews in England and tortured them until they ransomed themselves heavily.[1529]

In all this, however, there is no evidence of the revival of torture as a means of legal investigation. The community was satisfied with the old barbaric forms of trial, and the Church, still true to its humanizing instincts, lost no opportunity of placing the seal of its disapprobation on the whole theory of extorting confessions. At an early period, it had even been a matter of dispute whether a Christian magistrate, after baptism, was at liberty to inflict torment and pronounce sentence of death. The Synod of Rome in 384 had declared that no Christian could exercise secular power without sin, because he was obliged to contravene the teachings of the Church by ordering the application of torture in judicial pleadings;[1530] and if Innocent I., in 405, had decided that such proceedings were lawful, it was only on the ground that the Church had no right to resist the laws or to oppose the powers ordained of God.[1531] About the same time St. Augustin had exposed the cruel absurdity of torture with a cogent terseness that has rarely been excelled, and had stamped it with the infamy which it deserved.[1532] The great name of Gregory I. was on record in the sixth century, denouncing as worthless a confession extorted by incarceration and hunger.[1533] When Nicholas I., who did so much to build up ecclesiastical power and influence, addressed, in 866, his well-known epistle to the Bulgarians to aid and direct them in their conversion to orthodoxy, he recites that he is told that, in cases of suspected theft, their courts endeavor to extort confession by stripes, and by pricking with a pointed iron. This he pronounces to be contrary to all law, human and divine, for confessions to be valid should be spontaneous; and he argues at some length on the uncertainty of the system of torture, and the injustice to which it leads, concluding with a peremptory prohibition of its continuance.[1534]

In the first half of the same century, the manufacturers of the False Decretals had attributed to Alexander I. an epistle designed to protect the Church from pillage and oppression, in which that pontiff is made to threaten with infamy and excommunication those who extort confessions or other writings from ecclesiastics by force or fear, and to lay down the general rule that confessions must be voluntary and not compulsory.[1535] On the authority of this, Ivo of Chartres, at the commencement of the twelfth century, declares that men in holy orders cannot be forced to confess;[1536] and half a century later, Gratian lays down the more general as well as more explicit rule that no confession is to be extorted by the instrumentality of torture.[1537] This position was consistently maintained until the revival of the Roman law familiarized the minds of men with the procedures of the imperial jurisprudence, when the policy of the Church altered, and it yielded to the temptation of obtaining so useful a means of reaching and proving the otherwise impalpable crime of heresy.