Torture (from Lat. torquere, to twist), the general name for innumerable modes of inflicting pain which have been from time to time devised by the perverted ingenuity of man, and especially for those employed in a legal aspect by the civilized nations of antiquity and of modern Europe. From this point of view torture was always inflicted for one of two purposes: (1) As a means of eliciting evidence from a witness or from an accused person either before or after condemnation; (2) as a part of the punishment. The second was the earlier use, its function as a means of evidence arising when rules were gradually formulated by the experience of legal experts.
Torture as a part of the punishment may be regarded as including every kind of bodily or mental pain beyond what is necessary for the safe custody of the offender (with or without enforced labour) or the destruction of his life - in the language of Bentham, an " afflictive " as opposed to a " simple " punishment. Thus the unnecessary sufferings endured in English prisons before the reforms of John Howard, the peine forte et dure, and the drawing and quartering in executions for treason, fall without any straining of terms under the category of torture.
The whole subject is now one of only historical interest as far as Europe is concerned. It was, however, up to a comparatively recent date an integral part of the law of most countries (to which England, Aragon and Sweden' formed honourable exceptions) - as much a commonplace of law as trial by jury in England. 2 The prevailing view, no doubt, was that truth was best obtained by confession, the regina probationum. Where confession was not voluntary, it must be extorted. Speaking generally, torture may be said to have succeeded the ordeal and trial by battle.
Where these are found in full vigour, as in the capitularies of Charlemagne, there is no provision for torture. It was no doubt accepted reluctantly as being a quasi judicium Dei, but tolerated in the absence of any better means of eliciting truth, especially in cases of great gravity, on the illogical assumption that extraordinary offences must be met by extraordinary remedies. Popular feeling too, says Verri, preferred, as causes of evil, human beings who could be forced to confess, rather than natural causes which must be accepted with resignation. Confession, as probatio probatissima and vox vera, was the best of all evidence, and all the machinery of law was moved to obtain it. The trials for witchcraft remain on record as a refutation of the theory.
The opinions of the best lay authorities have been almost unanimously against the use of torture, even in a system where it was as completely established as it was in Roman law. " Tormeniia," says Cicero, 3 in words which it is almost impossible to translate satisfactorily, " gubernat dolor, regit quaesitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur." Seneca says bitterly, " it forces even the innocent to lie." St Augustine 4 recognizes the fallacy of torture. " If," says he, " the accused be innocent, he will undergo for an uncertain crime a certain punishment, and that not for having committed a crime, but because it is unknown whether he committed it."
At the same time he regards it as excused by its necessity. The words of Ulpian, in the Digest of Justinian,' are no less impressive: " The torture (quaestio) is not to be regarded as wholly deserving or wholly undeserving of confidence; indeed, it is untrustworthy, perilous and deceptive. For most men, by patience or the severity of the torture, come so to despise the torture that the truth cannot be elicited from them; others are so impatient that they will lie in any direction rather than suffer the torture; so it happens that they depose to contradictions and accuse not only themselves but others." Montaigne's 6 view of torture as a part of the punishment is a most just one: " All that exceeds a simple death appears to me absolute cruelty; neither can our justice expect that he whom the fear of being executed by being beheaded or hanged will not restrain should be any more awed by the imagination of a languishing fire, burning pincers, or the wheel."
He continues with the curious phrase: " He whom the judge has tortured (gehenne) that he may not die innocent, dies innocent and tortured." Montesquieu 7 speaks of torture in a most guarded manner, condemning it, but without giving reasons, and eulogizing England for doing without it. The system was condemned by Bayle and Voltaire with less reserve. Among 1 But even in these countries, whatever the law was, torture certainly existed in fact.
2 Primitive systems varied. There is no trace of it in Babylonian or Mosaic law, but Egyptian and Assyrian provided for it; and the story of Regulus seems to show that it was in use at Carthage.
Pro Sulla, c. 28.4 De civ. Dei, bk. xix. c. 6.
5 Dig. xlviii. 18, 23. Essay lxv. (Cotton's trans.) 7 Esprit des lois, bk. vi. c. 17.
the Germans, Sonnenfels (1766), and, among the Italians, Beccaria,' Verri 2 and Manzoni 3 will be found to contain most that can be said on the subject. The influence of Beccaria in rendering the use of torture obsolete was undoubtedly greater than that of any other legal reformer. The great point that he makes is the unfair incidence of torture, as minds and bodies differ in strength. Moreover, it is, says he, to confound all relations to expect that a man should be both accuser and accused, and that pain should be the test of truth, as though truth resided in the muscles and fibres of a wretch under torture. The result of the torture is simply a matter of calculation.
Given the force of the muscles and the sensibility of the nerves of an innocent person, it is required to find the degree of pain necessary to make him confess himself guilty of a given crime. Bentham's 4 objection to torture is that the effect is exactly the reverse of the intention. " Upon the face of it, and probably enough in the intention of the framers, the object of this institution was the protection of innocence; the protection of guilt and the aggravation of the pressure upon innocence was the real fruit of it." The apologists of torture are chiefly among jurists. But theoretical objections to it are often urged by the authors of books of practice, as by Damhouder, von Rosbach, von Boden, Voet, and others named below under the head of The Netherlands.
It is worthy of note as illustrative of the feeling of the time that even Bacon 5 compares experiment in nature to torture in civil matters as the best means of eliciting truth. Muyart de Vouglans 6 derives the origin of torture from the law of God. Other apologists are Simancas, bishop of Badajoz, 7 Engel, $ Pedro de Castro,9 and in England Sir R. Wiseman.10 Greece. - The opinion of Aristotle was in favour of torture as a mode of proof. " It is," he says, " a kind of evidence, and appears to carry with it absolute credibility because a kind of constraint is applied." It is classed as one of the " artless persuasions " (6r6xPoe 7rioTECS). 11 " It was the surest means of obtaining evidence, says Demosthenes. 12 At Athens slaves, and probably at times resident aliens, were tortured, 13 in the former case generally with the master's consent, but torture was seldom applied to free citizens,14 such application being forbidden by a psephism passed in the archonship of Scamandrius.
After the mutilation of the Hermae in 415 B.C. a proposition was male, but not carried, that it should be applied to two senators named by an informer. In this particular case Andocides gave up all his slaves to be tortured. 15 Torture was sometimes inflicted in open court. The rack was used as a punishment even for free citizens. Antiphon was put to death by this means. 16 The torture of Nicias by the Syracusans is alluded to by Thucydides 17 as an event likely to happen, and it was only in order to avoid the possibility of inconvenient disclosures that he was put to death without torture. Isocrates and Lysias refer to torture under the generic name of ar013Xwo s, but it was generally called 13acyavot, in the plural, like tormenta.
As might be expected, torture was frequently inflicted by the Greek despots, and both Zeno and Anaxarchus are said to have been put to it by such irresponsible authorities. At Sparta the despot Nabis was accustomed, as we learn from Polybius, 18 to put persons to death by an instrument of torture in the form of his wife Apega, a mode of torture no doubt resembling the Jungfernkuss once used in Germany. At Argos, as Diodorus informs us (xv. 57), certain conspirators were put to the torture in 371 B.C.19 Dei Delitti e delle gene, c. xvi. 2 Osservazioni sull y tortura. Storia della Colonna infame. 4 Works, vii. 525.
5 Nov. Org., bk. i. aph. 98. In the Advancement of Learning, bk. iv. ch. 4, Bacon collects many instances of constancy under torture.
6 Instituts du droit criminel (Paris, 1757).
7 De catholicis institutionibus liber, ad praecavendas et extirpandas haereses admodum necessarius (Rome, 1575).
8 De tortura ex foris christianis non proscribenda (Leipzig, 1733).
9 Defensa de la tortura (Madrid, 1778).
10 Law of Laws, p. 122 (London, 1686).
11 Rhet. i. 15, 26.12 In Onetum, i. 874.
13 Usually by the diaetetae in the Hephaestaeuni, Isocrates, Trapez. 361.
14 The opinion of Cicero (De partitionibus oratoriis, § 34), that it was so applied at Athens and Rhodes, seems, as far as regards Athens, not to be justified by existing evidence.
15 The demand for, or the giving up of, a slave for torture was called 7rpbKX7) ULS EIS Ri.vavov. 16 In the Ranae of Aristophanes, v. 617, there is a list of kinds of torture, and the wheel is alluded to in Lysistrata, v. 846.
vii. 86.18 xiii. 7.
19 For the whole subject, see Diet. Ant., s.v. Tormenta. xxvii. 3 a Rome. - The Roman system was the basis of all subsequent European systems which recognized torture as a part of their procedure, and the rules attained a refinement beyond anything approached at Athens. The law of torture was said by Cicero to rest originally on custom (mores majorum), but there is no allusion to it in the Twelve Tables. There are frequent allusions to it in the classical writers, 20 both of the republic and the empire.
The law, as it existed under the later empire, is contained mainly in the titles De quaestionibus 21 of the Digest and the Code 22 - the former consisting largely of opinions from the Sententiae receptae of Paulus, 23 the latter being for the most part merely a repetition of constitutions contained in the Theodosian Code. 24 Both substantive law and procedure were dealt with by these texts of Roman law, the latter, however, not as fully as in medieval codes, a large discretion being left to the judges. Torture was used both in civil and criminal trials, but in the former only upon slaves and freedmen or infamous persons (after Nov. xc. 1, 1, upon ignoti and obscuri if they showed signs of corruption) - such as gladiators - and in the absence of alia manifests indicia, 25 as in cases affecting the inheritance (res hereditariae).
Its place in the case of free citizens was taken by the reference to the oath of the party. During the republic torture appears to have been confined to slaves in all cases, but with the empire a free man became liable to it if accused of a crime, though in most cases not as a witness. On an accusation of treason every one, whatever his rank, was liable to torture, for in treason the condition of all was equa1.26 The same was the case of those accused of sorcery (magi), who were regarded as humani generis inimici. 27 A wife might be tortured (but only after her slaves had been put to the torture) if accused of poisoning her husband. In accusations of crimes other than treason or sorcery, certain persons were protected by the dignity of their position or their tender age.
The main exemptions were contained in a constitution of Diocletian and Maximian, and included soldiers, nobles of a particular rank, i.e. eminentissimi and perfectissimi, and their descendants to the third generation, and decuriones and their children to a limited extent (tormenta moderata) - that is to say, they were subject to the torture of the plumbatae in certain cases, such as fraud on the revenue and extortion. In addition to these, priests (but not clergy of a lower rank), children under fourteen and pregnant women were exempt. A free man could be tortured only where he had been inconsistent in his depositions, or where there was a suspicion that he was lying. 28 The rules as to the torture of slaves were numerous and precise.
It was a maxim of Roman law that torture of slaves was the most efficacious means of obtaining truth. 29 They could be tortured either as accused or as witnesses for their masters in all cases, but against their masters only in accusations of treason, adultery, frauds on the revenue, coining, and similar offences (which were regarded as a species of treason), attempts by a husband or wife on the life of the other, and in cases where a master had bought a slave for the special reason that he should not give evidence against him. The privilege from accusations by the slave extended to the master's father, mother, wife, or tutor, and also to a former master.
On the same principle a freedman could not be tortured against his patron. The privilege did not apply where the slave was joint property, and one of his masters had been murdered by the other, or where he was the property of a corporation, for in such a case he could be tortured in a charge against a member of the corporation. Slaves belonging to the inheritance could be tortured in actions concerning the inheritance. The adult slaves of a deceased person could be tortured where the deceased had been murdered. In a charge of adultery against a wife, her husband's, her own and her father's slaves could be put to the torture. A slave manumitted for the express purpose of escaping torture was regarded as still liable to it. Before putting a slave to torture without the consent of his master, security must be given to the master for his value and the oath of calumny must be taken. 30
The master of a slave tortured on a false accusation could recover double his value from the accuser. The undergoing of torture had at one time a serious effect upon the after-life of the slave, for in the time of Gaius a slave who had been tortured could on manumission obtain no higher civil rights than those of a dediticius. 31 The rules of procedure were conceived in.a spirit of as much fairness as such rules could be. Some of the most important were these: The amount of torture was at the discretion of the judge, but it was to be so 20 An instance is Pliny's letter to Trajan (Epist. x. 97), where he mentions having put to the torture two Christian deaconesses (ministrae). The words are confitentes iterum ac tertio interrogavi. This supports Tertullian's objection to the torture of Christians, torquemur confitentes (Apot. C. 2).
Quaestio included the whole process of which torture was a part. In the words of Cujacius, Quaestio est interrogatio quae fit per tormenta, vel de reis, vel de testibus qui facto intervenisse dicuntur. 22 Dig. xlviii. 18; Cod. ix. 41.
23 V. 14, 15, 16.24 ix. 35.
25 Cod. ix. 8, 3.26 Ibid. ix. 8, 4 27 Ibid. ix. 18, 7.28 Ibid. iv. 20, 13.
29 Ibid. i. 3, 8.
30 Ibid. ii. 59, 1, 1. The demand of another man's slave for torture was postulare. 31 Gaius i. 13.
applied as not to injure life or limb. If so applied the judge was infamis. The examination was not to begin by torture; other proofs must be exhausted first. The evidence' must have advanced so far that nothing but the confession of the slave was wanting to complete it. Those of weakest frame and tenderest age were to be tortured first. Except in treason, the unsupported testimony of a single witness was not a sufficient ground for torture. The voice and manner of the accused were to be carefully observed. A spontaneous confession, or the evidence of a personal enemy, was to be received with caution.
Repetition of the torture could only be ordered in case of inconsistent depositions or denial in the face of strong evidence. There was no rule limiting the number of repetitions. Leading questions were not to be asked. A judge was not liable to an action for anything done during the course of the examination. An appeal from an order to torture was competent to the accused, except in the case of slaves, when an appeal could be made only by the master.' The appellant was not to be tortured pending the appeal, but was to remain in prison. 3 The quaesitor asked the questions, the tortores applied the instruments. The principal forms of torture in use were the equuleus, or rack (mentioned as far back as Cicero), 4 the plumbatae, or leaden balls, the ungulae, or barbed hooks, the lamina, or hot plate, the mala mansio, 5 and the fidiculae, or cord compressing the arm.
Other allusions in the Digest and Code, in addition to those already cited, may be shortly noticed. The testimony of a gladiator or infamous person (such as an accomplice) was not valid without torture s This was no doubt the origin of the medieval maxims (which were, however, by no means universally recognized) - Vilitas personae est justa causa torquendi testem, and Tortura purgatur infamia. Torture could not be inflicted during the forty days of Lent.' Robbers and pirates might be tortured even on Easter day, the divine pardon being hoped for where the safety of society was thus assured. 8 Capital punishment was not to be suffered until after conviction or confession under torture. 9 Withdrawal from prosecution (abolitio) was not to be allowed as a rule after the accused had undergone the torture» In charges of treason the accuser was liable to torture if he did not prove his case."
The infliction of torture, not judicial, but at the same time countenanced by law, was at one time allowed to creditors. They were allowed to keep their debtors in private prisons, and most cruelly ill-use them, in order to extort payment. 12 Under the empire private prisons were forbidden. 13 In the time of Juvenal the Roman ladies actually hired the public torturers to torture their domestic slaves. 14 As a part of the punishment torture was in frequent use. Crucifixion, mutilation, exposure to wild beasts in the arena and other cruel modes of destroying life were common, especially in the time of the persecution of the Christians under Nero."
Crucifixion as a punishment was abolished by Constantine in 315, in veneration of the memory of Him who was crucified for mankind. On the other hand, where the interests of the Church were concerned the tendency was in favour of greater severity. Thus, by the Theodosian Code, a heretic was to be flogged with lead (contusus plumbo) before banishment,' 6 and Justinian made liable to torture and exile any one insulting a bishop or priest in a church, or saying litany, if a layman." ' The evidence on which the accused might be tortured was expressed in Roman law by the terms argumentum and indicium (used technically as early as Cicero, Verres, i. 10 and 17).
The latter term, as will be seen, afterwards became one of the most important in the law of torture, but the analysis of indicium is later than Roman law. Indicium was not quite the same thing as semiplena probatio, though the terms appear to be occasionally used as synonyms. Indicium was rather the foundation or cause of probatio, whether plena or semiplena. An indicium or a concurrence of indicia might, according to circumstances, constitute a plena or semiplena probatio. The phrase legitima indicia was sometimes used. In Sir T. Smith's work, c. 24 (see below), index means a prisoner acting as an approver under torture. Tormentum, tortura and quaestio appear to be equivalent terms. The medieval jurists derived the first of these from torquere mentem, an etymology as false as testamentum from testatio mentis (Inst. ii. to pr.).
Dig. xlix. i. 15.3 Cod. vii. 62, 12.
4 Milo, lvii. 5 Of doubtful meaning, but perhaps like the " Little Ease " of the Tower of London.
s Dig. xxii. 5, 21, 2. ' Cod. iii. 12, 6.
Ibid. iii. 12, 10.9 Ibid. ix. 47, 16.
1° Ibid. ix. 42, 3.1' Ibid. ix. 8, 3.
12 See, for instance, Livy vi. 36.13 Cod. i. 4, 23; ix. 5.
Ibid. vi. 480.
15 As an example of such punishments, cf. the well-known lines of Juvenal (Sat. i. 155) " Taeda lucebis in illa, Qua stantes ardent qui fixo gutture fumant." For other poetical allusions, see vi. 480, xiv. 21; Lucr. iii. 1030; Propert. iv. 7, 35.
16 xvi. 53.
Nov. cxxiii. 31. On the subject of torture in Roman law reference may be made to Wasserscheben, Historia quaestionum per tormenta apud Romanos (Berlin, 1836); H. Wallon. Histoire de l'esclavage dans l'antiquite (Paris, 1879); Mommsen, Romisches The Leges barbarorum are interesting as forming the link of connexion between the Roman and the medieval systems. Through them the Ron'ian doctrines were transmitted into the Roman law countries. The barbarian codes were based chiefly on the Theodosian Code. As compared with Roman law there seems to be a leaning towards humanity, e.g. the provision for redemption of a slave after confession by s. 40 of the Lex salica.
After the edict of Gundobald in 501 the combat rather than the torture became the expression of the judicium Dei. The Church. - As far as it could the Church adopted the Roman law. The Church generally secured the almost entire immunity of its clergy, at any rate of the higher ranks, from torture by civil tribunals; 18 but in general, where laymen were concerned all persons were equal. In many instances councils of the Church pronounced against torture, e.g. in a synod at Rome in 384.19 Torture even of heretics seems to have been originally left to the ordinary tribunals.
Thus a bull of Innocent IV., in 1282, directed the torture of heretics by the civil power, as being robbers and murderers of souls, and thieves of the sacraments of God. 20 The Church also enjoined torture for usury. 2 " A characteristic division of torture, accepted by the Church, but not generally acknowledged by lay authorities, was into spiritual and corporal, the latter being simply the imposition of the oath of purgation, the only form originally in use in the ecclesiastical courts. The canon law contains little on the subject of torture, and that little of a comparatively humane nature. It laid down that it was no sin in the faithful to inflict torture, 22 but a priest might not do so with his own hands," and charity was to be used in all punishments. 24
No confession was to be extracted by torture" and it was not to be ordered indiciis non praecedentibus. 26 The principal ecclesiastical tribunal by which torture was inflicted in more recent times was the Inquisition. The code of instructions issued by Torquemada in Spain in 1484 provided that an accused person might be put to the torture if semiplena probatio existed against the accused - that is, so much evidence as to raise a grave and not merely a light presumption of guilt, often used for the evidence of one eye or ear witness of a fact. If the accused confessed during torture, and afterwards confirmed the confession, he was punished as convicted; if he retracted, he was tortured again, or subjected to extraordinary punishment.
One or two inquisitors, or a commissioner of the Holy Office, were bound to be present at every examination. Owing to the occurrence of certain cases of abuse of torture, a decree of Philip II. was issued, in 1558, forbidding the administration of torture without an order from the council. But this decree does not appear to have been fully observed. By the edict of the inquisitor-general Valdes, in 1561, torture was to be left to the prudence and equity of the judges. They must consider motives and circumstances before decreeing torture, and must declare whether it is to be employed in caput proprium, i.e. to extort a confession, or in caput alienum, i.e. to incriminate an accomplice.
Torture was not to be decreed until the termination of the process and after defence heard, and the decree was subject to appeal, but only in doubtful cases, to the Council of the Supreme. It was also only in doubtful cases that the inquisitors were bound to consult the council; where the law was clear (and of this they were the judges) there need be no consultation, and no appeal was allowed. On ratification twenty-four hours afterwards of a confession made under torture, the accused might be reconciled, if the inquisitors believed him to be sincerely repentant. If convicted of bad faith he might be relaxed, i.e. delivered to the secular power to be burned.
The inquisitors had a discretion to allow the accused to make the canonical purgation by oath instead of undergoing corporal torture, but the rule which allows this to be done at the same time discountenances it as fallacious. It is remarkable that the rules do not allow much greater efficacy to torture. They speak of it almost in the terms of Roman law as dangerous and uncertain, and depending for its effects on physical strength. 27 Torture had ceased to be inflicted before the suppression of the Inquisition, and in 1816 a papal bull decreed that torture should cease, that proceedings should be public, and that the accuser should be confronted with the accused.
The rules in themselves were not so cruel as the construction put upon them by the inquisitors. For instance, by Torquemada's instructions torture could not be repeated unless in case of retractation. This led to the subtlety of calling a renewed torture a continuation, Strafrecht, iii. 5 (Leipzig, 1899); Greenidge, Legal Procedure of Cicero's Time, p. 479 (Oxford, 1901).
18 See Escobar, Theol. Mor. tract. vi. c. 2. They were to be tortured only by the clergy, where possible, and only on indicia of special gravity.
is Lea, Superstition and Force, p. 419 (3rd ed., Philadelphia, 1878).1878).
2° Leges et constitutiones contra haereticos, § 26.
Lecky, Rationalism in Europe, ii. 34.
Decretum, pt. ii. 2 3, 4, 45. Ibid. pt. i. 86, 25.
Ibid. pt. ii. 12, 2, 11.25 Ibid. pt. ii. 15, 6, I.
Decretals, v. 41, 6.
The rules will be found in H. C. Lea, Hist. of the Inquisition of Spain (1906). See also Hist. of the Inquisition of the Middle Ages (New York, 1888) by the same writer; R. Schmidt, Die Herkunft des Inquisitions processes (Berlin, 1902).
and not a repetition. The rules of Torquemada and of Valdes are those of the greatest historical importance, the latter forming the code of the Holy Office until its suppression, not only in Spain, but in other countries where the Inquisition was established. But several other manuals of procedure existed before the final perfection of the system by Valdes. The earliest is perhaps the instructions for inquisitors (Directorium inquisitorum) compiled a century earlier than Torquemada by Nicholas Eymerico, grand inquisitor of Aragon about 1368.1 Rules of practice were also framed two centuries later by Simancas, whose position as an apologist has been already stated.
The textbook of procedure of the Italian Inquisition was the Sacro arsenale. 2 In 1545 and 1550 instructions for the guidance of inquisitors were issued by Charles V. The liability of a judge for exceeding the law was not always recognized by the Inquisition to the same extent as by the lay tribunals. Llorente gives an instance of a warrant by an inquisitor to a licentiate ordering the torture of an accused person, and protesting that, in case of death or fracture of limbs, the fact is not to be imputed to the licentiate.3 Thus far of the law. In practice all the ingenuity of cruelty was exercised to find new modes of torment. 4 These cruelties led at times to remonstrance from the civil power.
One example is the' edict of Philip II. just mentioned. Another and an earlier one is an ordonnance of Philip the Fair, in 1302, bidding the Inquisition confine itself within the limits of the taw.' At Venice the senate decreed that three senators should be present as inquisitors.
As the practice of torture became more systematized, it grew to be the subject of casuistical inquiry by churchmen to an extent far exceeding the scanty discussion of the question in the text of the canon law. It will be sufficient here to cite as an example the treatment of it by Liguori, who incorporates the opinions of many of the Spanish casuists. On the whole, his views appear to be more humane than the prevailing practice. The object of torture he defines very neatly as being to turn semiplena into plena probatio. For this proper indicia are necessary. He then proceeds to decide certain questions which had arisen, the most interesting of which deal with the nature of the sin of which the accused and the judge are guilty in particular instances.
A judge sins gravely if he does not attempt all milder means of discovering truth before resorting to torture. He sins in a criminal cause, or in one of notable infamy, if he binds the accused by oath to tell the truth before there is proof against him. It is the same if without oath he uses threats, terror or exhibition of torments to confound the witness.' If any one, to avoid grave torments, charges himself with a capital crime, he does not sin mortally. 7 It was a doubtful question whether he sinned gravely in such a case. Escobar at an earlier date supported the morally dangerous view that an inquisitor may follow a probable opinion in ordering torture, relinquishing a more probable.8 England.-It is the boast of the common law of England that it never recognized torture as legal.
One, perhaps the chief, reason for this position taken by the law is the difference of the nature of the procedure in criminal cases from that in general use in European countries. To use words more familiar in foreign jurisprudence, the English system is accusatorial as distinguished from inquisitorial. In the former the accuser has to prove guilt, in the latter the accused has to prove innocence. The common law of England has always shown itself averse from the inquisitorial system, and so (at least in theory) to the torture which may be regarded as an outcome of the system whose one end was to obtain a confession from the accused. The tendency of the small amount of statute law bearing on the subject is in the same direction.
It was provided by Magna Carta, § 29, " that no free man ... should be destroyed in any way unless by legal judgment of his equals or by the law of the land." On this Sir E. Coke comments, " No man destroyed, &c., that is, forejudged of life or limb, disinherited, or put to torture or death." 9 The act of 27 Hen. VIII. c. 4 enacted that, owing to the frequent escape of pirates in trials by the civil law, " the nature whereof is that before any judgment of death can be given against the offenders they must plainly confess their offence (which they will never do without torture or pains)," such persons should be tried by jury before commissioners under the Great Seal.
Finally, the Bill of Rights provided that cruel and unusual punishments ought not to be inflicted. The opinions of the judges have been invariably against torture in theory, however much some of them may have 1 An edition was published at Rome in 1558, and a compendium at Lisbon in 1762, and by Marchena at Montpellier in 1821.
It was by Father Masini, and went through numerous editions (complete or compendia) from 1558 to 1730. Among other manuals of practice were those of Carenas Caesar (1655), l'lorellet (1762).
Llorente c. xiv.
4 Among others were the gradual pouring of water drop by drop on a particular spot of the body, the tormento de toca, or pouring of water into a gauze bag in the throat, which gradually forced the gauze into the stomach, and the pendola, or swinging pendulum, so graphically described in one of Edgar Poe's tales.
Ordonnances des rois, i.
6 Theol. mor. bk. ix. § 202.7 Ibid. § 274.
8 Ibid. v. 3 and 7.2 Inst. 48 b.
been led to countenance it in practice. The strongest authority is the resolution of the judges in Felton's case (1628), " that he ought not by the law to be tortured by the rack, for no such punishment is known or allowed by our law." 1° In accordance with this are the opinions of Sir John Fortescue," Sir Thomas Smith 1 and Sir E. Coke. The latter says, " As there is no law to warrant tortures in this land, nor can they be justified by any prescription, being so lately brought in." 13 In spite of all this, torture in criminal proceedings was inflicted in England with more or less frequency for some centuries, both as a means of obtaining evidence and as a part of the punishment.
But it should be remarked that torture of the former kind was invariably ordered by the Crown or council, or by some tribunal of extraordinary authority, such as the Star Chamber, not professing to be bound by the rules of the common law. In only two instances was a warrant to torture issued to a common law judge.l4 A licence to torture is found as early as the Pipe Roll of 34 Hen. I I.15 The Templars were tortured in 1310 by royal warrant addressed to the mayor and sheriffs of London. l6 In this case it is recorded that torture was unknown in England, and that no torturer was to be found in the realm. 17
A commission was issued concerning the tortures at Newgate in 1334.18 The rack in the Tower is said to have been introduced by the duke of Exeter in the reign of Henry VI., and to have been thence called " the duke of Exeter's daughter." 9 In this reign torture seems to have taken its place as a part of what may be called extraordinary criminal procedure, claimed, and it may be said tacitly recognized, as exercisable by virtue of the prerogative, and continued in use down to 1640.20 The infliction of torture gradually became more common under the Tudor monarchs. Under Henry VIII. it appears to have been in frequent use. Only two cases are recorded under Edward VI., and eight under Mary.21 The reign of Elizabeth was its culminating point. In the words of Hallam, " the rack seldom stood idle in the Tower for all the latter part of Elizabeth's reign." 22
The varieties of torture used at this period are fully described by Dr Lingard, 23 and consisted of the rack, the scavenger's daughter, 24 the iron gauntlets or bilboes, and the cell called " Little Ease." The registers of the council during the Tudor and early Stuart reigns are full of entries as to the use of torture, both for state and for ordinary offences. 25 Among notable prisoners put to the torture were Anne Askew, the Jesuit Campion, Guy Fawkes 26 and Peacham (who was examined by Bacon " before torture, in torture and after torture "). 27
The prevalence of torture in Elizabeth's reign led to the well-known defence attributed to Lord Burghley, " A declaration of the favourable dealing of Her Majesty's commissioners appointed for the examination of certain traitors, and of tortures unjustly reported to be done upon them for matter of religion," 1583.28 The use of torture in England being always of an extraordinary and extra-judicial nature, it is 10 3 State Trials, 371. "De laudibus legum Angliae, e. 22.
12 Commonwealth of England, bk. ii. c. 27 (1583; ed. by L. Alston, 1906). It is curious that Sir T. Smith, with all his hatred of torture, was directed by a warrant under the queen's seal alone (not through the council) to torture the duke of Norfolk's servants in 1571. In a letter to Lord Burghley he pleaded for exemption from so hateful a task.
13 3 Inst. 35. Nevertheless, in the trials of Lord Essex and Southampton, Coke is found extolling the queen's mercy for not racking or torturing the accused (1 State Trials, 1338). (See further authorities in Pollock and Maitland, Hist. of English Law, ii. 656.) Jardine, Reading on the Use of Torture in the Criminal Law of England (1837), p. 52.
15 L. O. Pike, Hist. of Crime in England, i. 427.
Rymer, Foedera, 228, 232.
Walter of Hemingford, p. 256.
Pike i. 481.3 Inst. 34.
20 This is the date of the latest warrant in Jardine's work, but it was used on three Portuguese at Plymouth during the Commonwealth (Thurloe iii. 298).
It is to be noticed, as Jardine observes, that all these are cases of an ordinary nature, and afford no ground for the assertions made by Strutt and Bishop Burnet that torture was used to heretics as heretics.
22 Const. Hist. i. 201.
Hist. of England, vol. viii. app. note v.
These two were exactly opposite in principle. The rack stretched the limbs of the sufferer; the scavenger's daughter compressed him into a ball.
Fifty-five of these will be found in the appendix to Mr Jardine's work. An ordinary robber of plate was threatened with torture in 1567.-Froude, Hist. of England, It is not certain whether he was racked, but probably he was, in accordance with the king's letter: " If he will not otherwise confess the gentlest tortures are to be first used to him, and so on, step by step, to the most severe, and so God speed the good work." 27 Dalrymple, Memoirs and Letters of James I. p. 85; Macaulay's essay on the works of Bacon.
Lord Somers's Tracts, i. 189.
comparatively certain that it could hardly have been applied with that observation of forms which existed in countries where it was regulated by law. There were no rules and no responsibility beyond the will of the Crown or council. This irresponsibility is urged by Selden as a strong objection to the use of torture. The main differences between the infliction of torture in England and on the continent of Europe seem to be that English lawyers made no distinction of those liable to it, never allowed torture of witnesses, and elaborated no subtle rules as to plena and semiplena probatio. So far of what may be called torture proper, to which the common law professed itself a stranger.
There were, however, cases fully recognized by the common law which differed from torture only in name. The peine forte et dure was a notable example of this. If a prisoner stood mute of malice instead of pleading, he was condemned to the peine, that is, to be stretched upon his back and to have iron laid upon him as much as he could bear, and more, and so to continue, fed upon bad bread and stagnant water through alternate days until he pleaded or died. It was abolished by 12 Geo. III. c. 20.7 and 8 Geo. IV. c. 28 enacted that a plea of " not guilty " should be entered for a prisoner so standing mute. A case of peine occurred as lately as 1726.
At times tying the thumbs with whip-cord was used instead of the peine. This was said to be a common practice at the Old Bailey up to the 18th century. In trials for witchcraft the legal proceedings often partook of the nature of torture, as in the throwing of the reputed witch into a pond to see whether she would sink or swim, in drawing her blood,4 and in thrusting pins into the body to try to find the insensible spot. Confessions, too, appear to have been often extorted by actual torture, and torture of an unusual nature, as the devil was supposed to protect his votaries from the effects of ordinary torture.
Torture as a part of the punishment existed in fact, if not in name, down to a very recent period. Mutilation as a punishment appears in some of the pre-Conquest codes, such as those of Alfred, Æthelstan and Canute, in the laws attributed to William the Conqueror and in the assize of Northampton (1176). Bracton, who does not notice torture as a means of obtaining evidence, divides corporal punishment into that inflicted with and without torture.' Later instances are the punishment of burning to death inflicted on heretics under the Six Articles (31 Hen. VIII. c. 14) and other acts, and on women for petit treason (abolished by 30 Geo. III.
48), the mutilation inflicted for violence in a royal palace by 33 Hen. c. 12, the punishment for high treason, which existed nominally until 1870, the pillory (abolished by 7 Will. IV. and 1 Vict. c. 23), the stocks, branks and cucking-stool, and the burning in the hand for felony (abolished by 19 Geo. III. c. 74). Corporal punishment now exists only in the case of juvenile offenders and of robbery with violence. It was abolished in the army by the Army Act 1881. Cruelty in punishment did not entirely cease in prisons even after the Bill of Rights. See such cases as R. v. Huggins, State Trials, 298; Castell v. Bambridge, 2 Strange's Rep. 856.
Scotland.-Torture was long a recognized part of Scottish criminal procedure, and was acknowledged as such by many acts and warrants of the Scottish parliament and warrants of the Crown and the privy council. Numerous instances occur in the Register of the Privy Council. ? Two acts in 1649 dealt with torture; one took the form of a warrant to examine witnesses against William Barton by any form of probation, the other of a warrant to a committee to inquire as to the use of torture against persons suspected of witchcraft.° The judges in 1689 were empowered by the estates to torture Chiesly of Dalrye, charged with the murder of the lord president Lockhart, in order to discover accomplices. In the same year the use of torture without evidence or in ordinary cases was declared illegal in the Claim of Right.
The careful wording of this will be noticed: it does not object to torture altogether, but reserves it for cases where a basis of evidence had already been laid, and for crimes of great gravity, thus admitting the dangerous principle, founded on Roman law, that the importance of the crime is a reason for departing from the ordinary rules of justice. However great the crime, it is no more certain than in the case of a crime of less gravity that the person accused was the person who committed it. A warrant issued in the same year to put to the torture certain persons accused of conspiring against the government, and also certain dragoons su'spected of corresponding with Lord Dundee.
In 1690 an act passed reciting the torture of William Carstares, a minister, in 1683, and re-establishing his competency as a witness. The last warrant appears to be one in 1690 for torturing a man accused of rape and murder. In 1708 torture in Scotland was finally abolished by 7 Table Talk, " Trial." Stephen, Hist. of the Criminal Law, i. 297.
Stephen i. 300; Kelyng, Reports, p. 27.
The superstition was that any one drawing a witch's blood was free from her power. This is alluded to in Henry VI. pt. i. act i. sc. 5; " ` Blood will I draw on thee; thou art a witch." 104b. 6 44 Vict. c. 9, 7.
E.g. i. 525, iv. 680, vi. 5 8 c 333.
370.
l0 The thumbscrew with which Carstares had been tortured was afterwards presented to him as a remembrance by the privy council.
Anne c. 21, s 5. Many details of the tortures inflicted will be found in Pitcairn's Criminal Trials, the introduction to J. Maclaurins' R. Criminal Cases and J. H. Burton's Narratives from Criminal Trials. Among other varieties-the nature of some of them can only be guessed-were the rack, the pilniewinkis, the boot, ' the caschie-laws, the lang irnis, the narrow-bore, the pynebankis, and worst of all, the waking, or artificial prevention of sleep. The ingenuity of torture was exercised in a special degree on charges of witchcraft, notably in the reign of James VI., an expert both in witchcraft and in torture. The act of 1649 already cited shows that the principle survived him. Under the government of the dukes of Lauderdale and York torture as a practice in charges of religious and political offences reached its height. "
The privy council was accustomed to extort confessions by torture; that grim divan of bishops, lawyers and peers sucking in the groans of each undaunted enthusiast, in hope that some imperfect avowal might lead to the sacrifice of other victims, or at least warrant the execution of the present." With such examples before them in the law, it is scarcely to be wondered at that persons in positions of authority, especially the nobility, sometimes exceeded the law and inflicted torture at their own will and for their own purposes. There are several instances in the Register of the Privy Council of suits against such persons, e.g. against the earl of Orkney, in 1605, for putting a son of Sir Patrick Bellenden in the boots.
Ireland seems to have enjoyed comparative immunity from torture. It was not recognized by the common or statute law, and the cases of its infliction do not appear to be numerous. In 1566 the president and council of Munster, or any three of them, were empowered to inflict torture, " in cases necessary, upon vehement presumption of any great offence in any party committed against the Queen's Majesty. 14 In 1583 Hurley, an Irish priest, was tortured in Dublin Ma by " toasting his feet against the fire with hot boots." In 1627 the lord deputy doubted whether he had authority to put a priest named O'Cullenan to the rack. An answer was returned by Lord Killultagh to the effect that " you ought to rack him if you saw cause and hang him if you found reason." The latest case of peine forte et dure seems to have been in 1740.
British Colonies and Dependencies.-The infliction of torture in any British colony or dependency has usually been regarded as contrary to law, and ordered only by arbitrary authority. It is true that in the trial of Sir Thomas Picton in 1806, for subjecting, while governor of Trinidad, a woman named Luisa Calderon to the torture of the picquet, one of the grounds of defence was that such torture was authorized by the Spanish law of the island, but the accused was convicted in spite of this defence, and the final decision of the court of king's bench, in 1812, decreeing a respite of the defendant's recognizances till further order, was perhaps not so much an affirmation of the legality in the particular instance as the practical expression of a wish to spare an eminent public servant.l8 As to India, the second charge against Warren Hastings was extortion from the begums of Oude by means of the torture of their servants.19
In the present Indian Penal Code and Evidence Acts there are provisions intended, as Sir James Stephen says, to prevent the practice of torture by the police for the purpose of extracting confessions from persons in their custody. In Ceylon torture, which had been allowed under the Dutch government, was expressly abolished by royal proclamation in 1799.
In the Channel Islands confessions of persons accused of witchcraft in the 17th century were frequently obtained by torture.22 United States.-One instance of the peine forte et dure is known. It was inflicted in 1692 on Giles Cory of Salem, who refused to plead when arraigned for witchcraft. The constitution of the United States provides, in the words of the Bill of. Rights, that cruel and unusual punishments are not to be inflicted.
This is repeated in the constitutions of most states. The infliction of cruel and unusual punishment by the master or officer of an American vessel on the high seas, or within the maritime jurisdiction of the United States, is punishable with fine or imprisonment, or both.26 There have been a good many decisions on the question of cruel and unusual punishments; e.g. Wilkerson v. Utah, 99 U.S. Rep. 130; 11 Persons subjected to more than usual torture from the boot were said to be " extremely booted." 12 This seems to have been used in one case in England. Lecky, Rationalism in Europe, i. 122.
13 Hallam, Const. Hist. iii. 436. See Burnet, Hist. of Own Time, 1.583; and Scotland.
14 Froude, Hist. of England, viii. 386.
15 Ibid xi. P 5417 In the picquet the sufferer was supported only on the great toe (which rested on a sharp stake), and by a rope attached to one arm.
30 State Trials, 449, besides many pamphlets of the period.
See the Report of the Proceedings, vol.
Stephen, Indian Evidence Act, p. 126.
21 Sections 327-331 of code; ss. 25-27 of act.
L. Pitts, Witchcraft in the Channel Islands, p. 9 (Guernsey, 1886).
Bouvier, Law Dict., s.v. " Peine forte et dure." Amendments, art. viii. (1789).
Revised Stat. 5347Territory of New Mexico v. Ketchum, 65 Pacific Rep. 169 (death penalty for train robbery held not unconstitutional).
Continental European States
These fall into four main groups, the Latin, Teutonic, Scandinavian and Slav states respectively. The principles of Roman law were generally adopted in the first and second groups.
Latin States
In France torture does not seem to have existed as a recognized practice before the ,3th century. From that period until the 17th century it was regulated by a series of royal ordonnances at first of local obligation, afterwards applying to the whole kingdom. Torture was used only by the royal courts, its place in the seigneurial courts being supplied by the judicial combat. The earliest ordonnance on the subject was that of Louis IX. in 1254 for the reformation of the law in Languedoc. It enacted that persons of good fame, though poor, were not to be put to the question on the evidence of one witness.' Numerous other provisions were made between 1254 and 1670, when an ordonnance was passed under Louis XIV., which regulated the infliction of torture for more than a century.
Two kinds were recognized, the question preparatoire and the question prealable. The first was used where strong evidence of a capital crime - strong, but of itself insufficient for conviction - was produced against the accused. The second was used to obtaih a confession of accomplices after conviction. There was also a mitigated form called the presentment, in which the accused was simply bound upon the rack in terrorem and there interrogated. No person was exempt on the ground of dignity, but exemption was allowed to youths, old men, sick persons and others. Counsel for the accused were usually not allowed. The question preparatoire was abolished by royal decree in 1780, but -in 1788 the parliaments refused to register a decree abolishing the prealable. But torture of all kinds was abolished by an ordonnance in 1789.
The Declaration of Right in 1791 (art. viii.) affirmed that the law ought not to establish any punishments other than such as are strictly and evidently necessary. In modern law the code penal enacts that all criminals shall be punished as guilty of assassination who for the execution of their crimes employ torture.' The code also makes it punishable to subject a person under arrest to torture. 3 The theory of semiplena probatio was worked out with more refinement than in other systems. In some parts of France not only were half-proofs admitted, but quarters and eighths of proofs. 4 Among the numerous cases of historical interest were those of the Templars in 1307, Villon about 1457, Dolet in 1546, the marquise de Brinvilliers in 1676 and Jean Calas in 1762.6
The law as it existed in Italy is contained in a long line of authorities chiefly supplied by the school of Bologna, beginning with the glossatores and coming down through the post-glossatores, until the system attained its perfection in the vast work of Farinaccius, written early in the 17th century, where every possible question that could arise is treated with a revolting completeness. One of the earliest jurists to treat it was Cino da Pistoia, the friend of Dante. 6 He treats it at no great length. With him the theory of indicia exists only in embryo, as they cannot be determined by law but must be at the discretion of the judge. Differing from Bartolus, he affirms that torture cannot be repeated without fresh indicia.
The writings of jurists were supplemented by a large body of legislative enactments in most of the Italian states, extending from the constitutions of the emperor Frederick II. down to the 18th century. It is not until Bartolus (1314-1357) that the law begins to assume a definite and complete form. In his commentary on book xlviii. of the Digest he follows Roman law closely, but introduces some further refinements: e.g. though leading questions may not be asked in the main inquiry they are admissible as subsidiary. There is a beginning of classification of indicia. A very full discussion of the law is contained in the work on practice of Hippolytus de Marsiliis, 7 a jurist of Bologna, notorious, on his own admission, as the inventor of the torture of keeping without sleep.
He defines the question as inquisitio veritatis per tormenta et cordis dolorem, thus recognizing the mental as well as the physical elements in torture. It was to be used only in capital cases and atrocious crimes. The works of Farinaccius and of Julius Clarus nearly a century later were of great authority from the high official positions filled by the writers. Farinaccius was procurator-general to Pope Paul V., and his discussion of torture is one of the most complete of any.8 It occupies 251 closely printed folio pages with double columns. The length at which the subject is treated is one of the best proofs 1 Ordonnances des rois, i. 7 2. s. 303.3 s. 344.4 See Pollock and Maitland, ii. 658, note.
6 On the French system generally see Imbertus, Institutiones forenses gallicae (Utrecht, 1649); N. Weiss, La Chambre ardente, 1 54 0 - 1 55 0 (Paris, 1889). A large number of authorities deal mainly with the ordonnance of 1670; Muyart de Vouglans, Inst. crim. (Paris, 1767), and Jousse, Traite de la justice crim. (Paris, 1771), are examples. F. Siegneux de Correvon, Essai sur i'usage, l'abus, et les inconveniens de la torture (Geneva, 1768), is one of the opponents of the system.
Cinus Pistorensis, Super codice, de tormentis (Venice, .1493).
7 Practica criminalis quae Averolda nuncupatur (Venice, 1532). Praxis et theorica criminalis, bk. ii. tit. v. quaest. 36-51 (Frankfort, 1622).
of the science to which it had been reduced. The chief feature of the work is the minute and skilful analysis of indicia, fama, praesumptio, and other technical terms. Many definitions of indicium are suggested, the best perhaps being conjectura ex probabilibus et non necessariis orta, a quibus potest abesse veritas sed non verisimilitudo. For every infliction of torture a distinct indicium is required. A single witness or an accomplice constitutes an indicium. But this rule does not apply where it is inflicted for discovering accomplices or for discovering a crime other than that for which it was originally inflicted.
Torture may be ordered in all criminal cases, except small offences, and in certain civil cases, such as denial of a depositum, bankruptcy, usury, treasure trove, and fiscal cases. It may be inflicted on all persons, unless specially exempted (clergy, minors, &c.), and even those exempted may be tortured by command of the sovereign. There are three kinds of torture, levis, gravis and gravissima, the first and second corresponding to the ordinary torture of French writers, the last to the extraordinary. The extraordinary or gravissima was as much as could possibly be borne without destroying life. The judge could not begin with torture; it was only a subsidium. If inflicted without due course of law, it was void as a proof. The judge was liable to penalties if he tortured without proper indicia, if a privileged person, or if to the extent that death or permanent illness was the result.
An immense variety of tortures is mentioned, and the list tended to grow, for, as Farinaccius says, judges continually invented new modes of torture to please themselves. Numerous casuistical questions are treated at length, such as, what kinds of reports or how much hearsay evidence constituted fame? Were there three or five grades in torture? Julius Clarus of Alessandria was a member of the council of Philip II. To a great extent he follows Farinaccius. He puts the questions for the consideration of the judge with great clearness. They are - whether (I) a crime has been committed, (2) the charge is one in which torture is admissible, (3) the fact can be proved otherwise, (4) the crime was secret or open, (5) the object of the torture is to elicit confession of crime or discovery of accomplices. The clergy can be tortured only in charges of treason, poisoning and violation of tombs.
On the great question whether there are three or five grades, he decides in favour of five, viz. threats, taking to the place of torment, stripping and binding, lifting on the rack, racking.9 Other Italian writers of less eminence have been referred to for the purposes of this article. The burden of their writings is practically the same, but they have not attained the systematic perfection of Farinaccius. Citations from many of them are made by Manzoni (see below). Among others are Guido de Suzara, Paris de Puteo, Aegidius Bossius of Milan, Casonus of Venice, Decianus, Follerius and Tranquillus Ambrosianus, whose works cover the period from the 1 3th to the end of the 17th century. The law depended mainly on the writings of the jurists as interpreters of custom.
At the same time in all or nearly all the Italian states and colonies" the customary law was limited, supplemented, or amended by legislation. That a check by legislative authority was necessary appears from the glimpses afforded by the writings of the jurists that the letter of the law was by no means always followed. The earliest legislation after the Roman law seems to be the constitutions of the emperor Frederick II. for Sicily promulgated in 1231. Torture was abolished in Tuscany in 1786, largely owing to the influence of Beccaria, whose work first appeared in 1764, and other states followed, but the puntale or piquet seems to have existed in practice at Naples up to 1859.
Several instances of the torture of eminent persons occur in Italian history, such as Savonarola, Machiavelli, Giordano Bruno, Campanella. Galileo appears to have only been threatened with the esame rigoroso. The historical case of the greatest literary interest is that of the persons accused of bringing the plague into Milan in 1630 by smearing the walls of houses with poison. An analysis of the case was undertaken by Verri 1' and Manzoni," and puts in a clear light some of the abuses to which the system led in times of popular panic. C
onvincing arguments are urged by Manzoni, after an exhaustive review of the authorities, to prove the groundlessness of the charge on which two innocent persons underwent the torture of the canape, or hempen cord (the effect of which was partial or complete dislocation of the wrist), and afterwards suffered death by breaking on the wheel. The main arguments, shortly stated, are these, all based upon the evidence as recorded, and the law as laid down by jurists. (1) The unsupported evidence of an accomplice was treated as an indicium in a case not one of those exceptional ones in which such an indicium was sufficient.
The evidence of two witnesses or a confession by the accused was necessary to establish a remote indicium, such as lying. (2) Hearsay evidence was received when primary evidence was obtainable. (3) The confession made under torture was not ratified afterwards. (4) It was made in consequence of a promise of impunity. (5) It was of an impossible crime.
9 Practica criminalis finalis (Lyons, 1637).
10 It is obvious from the allusion at the end of Othello that Shakespeare regarded torture as possible in Cyprus when it was a Venetian colony.
11 Osservazioni sull y tortura. 12 Storia della Colonna infame. Neither writer alludes to Beccaria.
In Spain, as in Italy, the law depended partly on the writings of jurists, partly on legislation. Roman law was carried through the Visigothic Code and the Fuero juzgo' (which repeats it almost word for word) down to the Siete partidas. 2 This treatise, compiled by Alphonso the Wise about 1243, but not promulgated till 1256, amended the previously existing law in the direction of greater precision. Torment is defined as a manner of punishment which lovers of justice use, to scrutinize by it the truth of crimes committed secretly and not provable in any other manner. Repetition was allowed in case of grave crimes.
There were the usual provisions for the infliction of torture only by a judge having jurisdiction, and for the liability of the judge for exceeding legal limits. Subsequent codes did little more than amend the Partidas in matters of procedure. Torture is not named in the Ordenanzas reales of Ferdinand and Isabella (1485). The Nueva recopilacion of Philip II. enacted that torture was to be applied by the alcaldes on due sentence of the court-even on hidalgos in grave crimes-without regard to alleged privilege or custom. In the Novisima recopilacion of 1775 the only provisions on the subject are that the alcaldes are not to condemn to torment without preceding sentence according to law, and that hidalgos are not to be tormented or suffer infamous punishment.
In Aragon, while it was an independent state, torture was not in use to the same extent as in other parts of Spain. It was abolished in the 13th century by the General Privilege of 1283 except in the case of vagabonds charged with coining. A statute of 1335 made it unlawful to put any freeman to the torture.' On the other hand, the Aragonese nobility had a power, similar to the peine forte et dure, of putting a criminal to death by cold, hunger and thirst.' The jurists dealing with the subject are not as numerous as in Italy, no doubt because Italian opinions were received as law in all countries whose systems were based on Roman law.' Some of the Italian jurists too, like Clarus, were at that same time Spanish officials.
The earliest Spanish secular jurist appears to be Suarez de Paz.' According to him the most usual tortures in Spain were the water and cord, the pulley or strappado, the hot brick, and the tablillas, or thumbscrew and boot combined. Three was the greatest number of times that any torture could be applied. It might be decreed either on demand of the accuser or at will of the judge. The Roman rule of beginning with the weakest was amplified into a series of regulations that a son was to be put to the question before a father, a woman before a man, &c. The fullest statement of Spanish law is to be found in the work of Antonio Gomez, a professor at Salamanca.'
With him no exceptions apply in charges of laesa majestas divina or humana. A judge is liable to different punishment according as he orders torture dolose or culpabiliter. Differing from Hippolytus de Marsiliis, Gomez holds that the dying accusation of a murdered man is not an indicium. A confession on insufficient indicia is void. His division of torture into tortura actualis and terror propinquus is the same as that of the French jurists into torture and presentment.
The conclusions of the ecclesiastical writers of Spain, such as Eymerico and Simancas, were accepted wholly or partially by the secular writers, such as Alvarez de Velasco, 8 and the Peruvian, Juan de Hevia Bolanos,9 who points out differences in the ecclesiastical and secular systems, e.g. the former brought up the accused for ratification in three days, the latter in twenty-four hours. A good deal of the Spanish law will be found in the proceedings against Sir Thomas Picton (see above).
Torture in Spain seems to have been inflicted on Jews to an extraordinary extent, as it was also in Portugal, where the latest legislation. as to torture seems to be of the year 1678. In 1790 it had become obsolete, 10 and in a work on criminal procedure four years later it is only referred to for the purpose of stating that when it did exist it was reales or verbalis." Teutonic States.-Germany (including Austria) is distinguished by the possession of the most extensive literature and legislation 5Partida, vii. 30. It was one of the earliest books printed in Spain, the earliest edition appearing in 1491.
Cited Hallam, Middle Ages, iii. 76.
4 Du Cange, s.v. Fame necare. In all the Latin countries the idea of torture had become a commonplace. The dramatists contain frequent allusions to it. In Lope de Vega's El Perro del hortelano (" The Dog in the Manger "), one of the characters says, " Here's a pretty inquisition!" to which the answer is, " The torture will be next applied." Moliere and Racine both make use of it. In L'Avare, act iv. sc. 7, Harpagon threatens to put his whole household to the question. In Les Plaideurs Dandin invites Isabelle to see la question as a mode of passing an hour or two. In England Bacon (Essay lvi.) says, There is no worse torture than the torture of laws." The same idea occurs again in the Advancement of Learning, viii. 3, 13, " It is a cruel thing to torture the laws that they may torture men." 6 Praxis ecclesiastica et saecularis, vol. i. pt. v. §. 3 (Salamanca, 1583).
Variae resolutiones, p. 412 (Antwerp, 1593).
8 Judex perfectus (Lausanne, 1740).
9 Curia filipica (Madrid, 1825).
to Repertorio geral das leis extravagantes, p. 381 (Coimbra, 1815). 11 Paschal Freirus, Inst. jur. crim. lusitani, p. 203 (Lisbon, 1794).
on the subject. The principal writers are Langer, von Rosbach and von Boden. In addition may be cited the curious Layenspiegel of Ulrich Tengler (1544), and the works of Remus, Casonus arid Carpzow. 12 Legislation was partly for the empire, partly for its component states. Imperial legislation dealt with' the matter in the Golden Bull (1356), the Ordinance of Bamberg (1507), the Carolina (1532) 13 and the Constitutio criminalis theresiana (1768).14 The Carolina followed the usual lines, the main difference being that the infliction must be in the presence of two scabini and a notary, who was to make a detailed record of the proceedings. The code of Maria Theresa defines torture as " a subsidiary means of eliciting truth."
It could be applied only in cases where condemnation would have involved capital or severe corporal punishment. The illustrated edition was suppressed by Prince Kaunitz a few days after its appearance. Torture was formally abolished in the empire in 1776. In Prussia it was practically abolished by Frederick the Great in 1740, formally in 1805. Even before its abolition it was in use only to discover accomplices after conviction. 15 In some other states it existed longer, in Baden as late as 1831. It was carried to excess in Germany, as in the Netherlands and Scotland i.i charges of witchcraft.
The Netherlands.-The principal legislative enactment was the code of criminal procedure promulgated by Philip II. in 1570 and generally known as the Ordonnance sur le style." One of its main objects was to assimilate the varieties of local custom, as the Nueva recopilacion had done in Spain three years earlier. The French ordonnance of 1670 is probably largely based on it. In spite of the attempt of the ordinance to introduce uniformity, certain cities of Brabant, it is said, still claimed the privilege of torturing in certain cases not permitted by the ordinance, e.g. where there was only one witness." The law of 3670 continued to be the basis of criminal procedure in the Austrian Netherlands until 1787. In the United Provinces it was not repealed until 1798.
The principal text-writers are Damhouder, 16 van Leeuwen" and Voet. Van Leeuwen lays down as a fundamental principle that no one was to be condemned to death without confession, and such confession, if attainable in no other way, ought to be elicited by torture. Witnesses could be tortured only if they varied on confrontation. One of the indicia not always recognized by jurists was previous conviction for a similar crime. Voet's commentary ad Pandectas 20 is interesting for its taking the same view as St Augustine as to the uselessness of torture, and compares its effect with that of the trial by battle. .At the same time he allows it to be of some value in the case of very grave crimes. The value of torture was doubted by others as well as Voet, by A. Nicholas 21 and by van Essen."
At the same time a writer was found to compose a work on the unpromising subject of the rack.2s Scandinavian Countries.-There is a notice of torture in the Icelandic Code known as the Gragas (about 1119). Judicial torture is said to have been introduced into Denmark by Valdemar I. in 1,57.24 In the code of Christian V. (1683) it was limited to cases of treason. 2 ' It was abolished ' by the influence of Struensee in 1771, but notwithstanding this he was threatened with it, though it was not actually inflicted, before his execution in 1772. In Sweden torture never existed as a system, and in the code of 1734 it was. expressly forbidden. 26 It was however occasionally inflicted, as in England, by extrajudicial authorities, called secret committees.
12 Extracts from these and other writers will be found in Lea, Superstition and Force, and in R. Quanter, Die Folter in der deutschen Rechtspflege sonst and jetzt (Berlin, 1900).
13 Chs. 33-44.
Art. 38 (Vienna, 1769).
15 This statement is made on the authority of a work attributed to Frederick himself, Dissertation sur les raisons d'etablir ou d'abroger les lois A list of the numerous commentaries on this code will be found in Nybels, Les Ordonnances criminelles de Philippe II. de 1570, p. 23 (Brussels, 1856).
17 Nybels, pp. 3 1, 33.
18 Pratique judiciaire en causes criminelles (Antwerp, 1564).
Censura forensis, pt. ii. bk. ii. chs. 8, 9 (Leiden, 1677).
20 On Dig. xlviii. 18. There are numerous editions of Voet, the sixth (generally found in libraries) is the Hague (1734).
Si la torture est un moyen stir a verifier les crimes (Amsterdam, 1681). Also by an anonymous writer thirty years earlier, De Pijnbank wedersproken en bematigt (Rotterdam, 1651).
22 Jus ecclesiasticum universum (Louvain, 1720).
Hieronymi Magii Anglarenis de equuleo liber postumus (Amsterdam, 1664). There are several works dealing with torture in witchcraft proceedings. A large number of cases will be found in j. Scheltema, Geschiedenis der Hexen-processen (Haarlem, 1828). For torture in the 18th century see E. Hubert, La Torture aux Pays Bas autrichiens pendant la xviii e siecle (Brussels, 1897).
Baden, Dansk juridisk Ordbog, s.v. " Tortur " (Copenhagen, 1828).
Kolderup-Rosenvinge, Udvalg of gamle Danske-Domme, bk. i. c. 20 (Copenhagen, 1848).
26 Cod. leg. svecitarum, pp. 2 33, 37 0 (Stockholm, 1743).
The " cave of roses," where reptiles were kept for the purpose of torture, was closed by Gustavus III. in 1772.
Slav Countries
The earliest mention of torture seems to be that of the mutilation provided for certain offences by the code of Stephen Dushan in 1349. In Russia torture does not occur in the recensions of the earlier law. It was possibly of Tatar origin, and the earliest mention of it in an official document is probably in the Sudebnik of Ivan the Terrible (1497). In the ordinance of 1556 there are elaborate regulations, which one learns from history were not always observed in periods of political disturbance, and torture seems to have been used even as a means of enforcing payment of debts. The reaction begins with Peter the Great and culminates with Catharine II., who was largely influenced by the opinions of Beccaria and Voltaire.
In the instructions to the commission for framing a criminal code (1766), it is declared that all punishments by which the body is maimed ought to be abolished,' and that the torture of the rack violates the rules of equity and does not produce the end proposed by the laws. 2 It was formally abolished by Alexander I. in 1801, and in 1832 the Svod Zakonov subjected to penalties any judge who presumed to order it. But even as late as 1847 it seems to have been inflicted in one or two exceptional cases.3 Authorities. - For England Jardine's is still the standard work.
Much general information and numerous authorities will be found in Lipenius, Bibliotheca realis Juridica, s.v. " Tortura " (Frankfort, 1679), and in the more modern work of J. Helbing, Die Tortur (Berlin, 1902). For those who can obtain access to it the catalogue issued at the sale of M. G. Libri (1861) is valuable. He had collected most of the books on the subject. There are several publications dealing with cases of individuals in addition to the numerous ones on witchcraft trials, e.g. those of William Lithgow, the Amboyna case, Dellon and Van Halen. Lithgow' s story has been republished (Glasgow, 1907). (J. W.)
