TORTURE. It is proposed to treat in this place not so much the innumerable modes of inflicting pain which have been from time to time devised by the perverted ingenuity of man as the subject of legal torture, as it existed in the civilized nations of antiquity and of modern Europe, that is to say, torture inflicted with more or less appearance of legality by a responsible executive or judicial authority. 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. 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 Howard (see HOWARD and PRISON DISCIPLINE) and the drawing and quartering in the old 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 [460-1] formed honourable exceptions), as much a commonplace of law as trial by jury in England. One reason for its long continuance was no doubt the view taken in an age of judicial perjury [460-2] that truth was only to be attained by violent means, if not by torture then by ordeal or trial by battle. Speaking generally, torture may be said to have succeeded the ordeal and trial by battle (compare ORDEAL). 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, 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.
The opinions of the best authorities have been in theory almost unanimously against the use of torture, even in a system where it was as completely established as it was in Roman law. "Tormenta," says Cicero [461-1] 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 recognizes the fallacy of torture. "If," says he, "the accused be innocent, he will undergo for an s uncertain crime a certain punishment, and that not for having committed a crime, but because it is unknown whether he committed it." [461-2] At the same time he regards it as excused by its necessity. The words of Ulpian, in the Digest of Justinian, [461-3] 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." Montaignes [461-4] 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." Montesquieu [461-5] 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 the Italians, Beccaria, [461-6] Verri, [461-7] and Manzoni [461-8] 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 persons 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, Benthams [461-9] 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, even among jurists, are not numerous. In fact, theoretical objections to it are often urged by the authors of books of practice, as by Damhouder, Von Rosbach, Von Boden, and Voet. It is worthy of note, however as illustrative of the feeling of the time, that even Bacon [461-10] compares experiment in nature to torture in civil matters as the best means of eliciting truth. Muyart de Vouglans [461-11] derives the origin of torture from the law of God. Other apologists are Simancas, bishop of Badajos, [461-12] Engel, [461-13] and in England Sir R. Wiseman.[461-14]
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" (_____). [461-15] At Athens slaves, and probably at times resident aliens, were tortured, but it was never applied to free citizens, [461-16] 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 made, 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. [461-17] 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. [461-18] The torture of Nicias by the Syracusans is alluded to by Thucydides [461-19] 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 _____. 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, [461-20] 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 in use in Germany.
Rome.Roman system was the basis of all subsequent European systems which recognized torture as a part of their procedure. The law of torture was said by Cicero to rest originally on custom (mores majorum). There are frequent allusions to it in the classical writers [461-21] both of the republic and the empire. The law, as it existed under the later empire, is contained mainly in the titles De Quaestionibus [461-22] of the Digest and the Code, [461-23]the former consisting largely of opinions from the Sententiae Receptae of Paulus, [461-24] the latter being for the most part merely a repetition of constitutions contained in the Theodosian Code. [461-25] Both substantive law and procedure were dealt with by these texts, of Roman law, the latter, however, not as fully as in mediaeval 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 personssuch as gladiatorsand where the truth could not be otherwise elicited, 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 (see OATH). During the republic torture appears to have been confined to slaves in all cases, but with the empire (according to Dion Cassius under Tiberius) a free man became liable to it if accused of a crime, though not as a witness. If a Christian, of however high a condition, he was subject to torture during the period between the edict of Diocletian in 303 and the edict of toleration of Galerius in 311. This short period excepted, the liability of a free man depended upon two conditions, the nature of the accusation and the rank of the accused. On an accusation of treason every one, whatever his rank, was liable to torture, for in treason the condition of all was equal. [462-1] The same was the case of those accused of sorcery (magi), who were regarded as humani generis inimici. [462-2] 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 extentthat 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. No one was to be chained in prison before trial, nor could a prisoner be tortured while awaiting trial. 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. [462-3] They could be tortured either as accused or as witnesses, 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 masters 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 husbands, her own, and her fathers 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. 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. [462-4] 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 applied as not to injure life or limb. The examination was not to begin by torture; other proofs must be exhausted first. The evidence [462-5] 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 role 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. [462-6] The appellant was not to be tortured pending the appeal, but was to remain in prison. [462-7] The principal forms of torture in use were the equuleus, or rack (mentioned as far back as Cicero), the plumbatae, or leaden balls, the ungulae, or barbed hooks, 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. [462-8] This was no doubt the origin of the mediaeval maxims (which were, however, by no means universally recognized),Vilitas personae est justa causa torquendi testem, and Tortura purgalur infamia. Torture could not be inflicted during tie forty days of Lent. [462-9] Robbers and pirates might be tortured even on Easter Day, the Divine pardon being hoped for where the safety of society was thus assured. [462-10] Capital punishment was not to be suffered until after conviction or confession under torture. [462-11] Withdrawal from prosecution (abolition) was not to be allowed as a rule after the accused had undergone the torture. [462-12] 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 then debtors in private prisons, and most cruelly ill-use them, in order to extort payment. [462-14] Under the empire private prisons were forbidden. [462-15] In the time of Juvenal, it his sixth satire may be believed, the Roman ladies actually hired the public torturers to torture their domestic slaves. As a part of the punishment torture way 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. [463-1] Crucifixion as a punishment was abolished by Constantine in 315, in veneration of the memory of Him who was crucified for mankind. The punishment of mutilation was moderated by Justinian, who forbade amputation of both hands or feet or of any limb, and confined it in future to amputation of one hand. [463-2] Scourging was inflicted only on slaves; free men were exempt by the Lex Porcia and Lex Valeria, except in a few cases, such as that of adultery, the penalty for which was scourging and cutting off the nose. [463-3] 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, [463-4] and Justinian made liable to torture and exile any one insulting a bishop or priest in a church. [463-5]
The Church. As far as it could the church adopted the Roman law, with the important and characteristic difference (dating from the severe edicts of Theodosius the Great in 381) that heresy took the place of treason, it being regarded as a kind of treason against God ("crimen laesae majestatis divinsae"). [463-6] The doctrine of confiscation for treason was so convenient and profitable that it was rapidly adopted by the church. [463-7] As most instances in which torture was inflicted by ecclesiastical tribunals would be accusations of heresy or Judaisma specially revolting form of heresy to mediaeval Christiansthis theory practically equalized all persons for the purpose of torture, in accordance with the doctrine that in treason all were equal. The church generally secured the almost entire immunity of its clergy, at any rate of the higher ranks, from torture by civil tribunals. [463-8] In many instances councils of the church pronounced against torture, e.g., in a synod at Rome in 384. [463-9] Torture even of heretics seems to have been originally left to the ordinary tribunals. Thus a bull of Innocent IV., in 1252, directed the torture of heretics by the civil power, as being robbers and murderers of souls, and thieves of the sacraments of God. [463-10] The church also enjoined torture for usury. [463-11] 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, [463-12] but a priest might not do so with his own hands, [463-13] and charity was to be used in all punishments. [463-14] No confession was to be extracted by torture. [463-15] The principal ecclesiastical tribunal by which torture was inflicted in more recent times was of course the INQUISITION (q.v.). The code of instructions issued by Torquemada in Spain in 1484 provided that an accused person might be put to the torture if semiplena probatic existed against the accused,that is, so much evidence ass 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 Valdés, 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. The accused was not to be informed of the grounds of torture. He was not to be questioned on a particular fact, but was to be allowed to say what he pleased. 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. The judges, the registrar, and the executioners were the only persons allowed to be present at the torture. They were to be careful that the jailer suggested nothing to the accused during the torture. 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. [463-16] 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. [463-17] It was still, however, customary for the fiscal, even in the latest times, to end the requisition by demanding torture as a matter of form. The rules in themselves were not so cruel as the construction put upon them by the inquisitors. For instance, by Torquemadas instructions torture could not be repeated unless in case of retractation. This led to the subtlety of calling a renewed torture a continuation, and not a repetition.^ The rules of Torquemada and of Valdés 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 codes of procedure existed before the final perfection of the system by Valdés. The in earliest is perhaps the instructions for inquisitors (Directorium Inquisitorum) compiled a century earlier than Torquemada by Nicholas Eymerico, grand inquisitor of Aragon about 1368. [464-1] Rules of practice were also framed two centuries later by Simancas, whose position as an apologist has been already stated. The text-book of procedure of the Italian Inquisition was the Sacro Arsenale. [464-2] In the Netherlands, Francis Van der Heist was appointed inquisitor-general in 1521, with authority to torture heretics without observing the ordinary forms of law, and without is appeal. [464-3] In 1545 and 1550 instructions for the guidance of inquisitors were issued by Charles V. [464-4] 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 a limbs, the fact is not to be imputed to the licentiate. [464-5]
Thus far of the law. In practice all the ingenuity of s cruelty was exercised to find new modes of torment. [464-6] 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 law. [464-7] At Venice the senate decreed that three senators should be present as inquisitors. Further details of the varieties of torture will be found, by those curious in such matters, in the works of Llorente, Herculano (History of the Inquisition in Portugal), Motley Garrido and Cayley, and Picart, to which may be added works giving accounts of the sufferings of individuals under the Inquisition, such as the narrative of the suffering of William Lifchgow at Malaga in 1622 and of Van Halen in 1817, and (in the Spanish and Portuguese colonies) the cases of Francisco Moyen in Chill, and of Dellon at Goa in 1673. [464-8] Mental torture may be exemplified by EXCOMMUNICATION (q.v.) and by the secrecy and uncertainty of the proceedings of the inquisitors.
As the practice of torture, both by the civil and ecclesiastical power, 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 winch 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. [464-9] If any one, to avoid grave torments, charges himself with a capital crime, he does not sin mortally. [464-10] It was a doubtful question whether he sinned gravely in such a case.
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 Continental countries. To use words more familiar in foreign jurisprudence the English system is accusatorial as distinguished from inquisitorial. The common law of England has always shown itself averse to 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 Charta, § 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." 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 been led to countenance it in practice. The strongest authority is the resolution of the judges in Feltons 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. In accordance with this are the opinions of Sir John Fortescue, [464-13] Sir Thomas Smith, [464-14] 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." [464-15] 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 " [464-16]
A licence to torture is found as early as the Pipe Roll of 34 Hen. II.17 The Templars (see TEMPLARS) were tortured in 1310 by royal warrant addressed to the mayor and sheriffs of London. [465-1] In this case it is recorded that torture was unknown in England, and that no torturer was to be found in the realm. [465-2] A commission was issued concerning the tortures at Newgate in 1334. [465-3] 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 Exeters daughter." [465-4] 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. [465-5] 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. [465-6] 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 Elizabeths reign." [465-7] The varieties of torture used at this period are fully described by Dr Lingard, [465-8] and consisted of the rack, the scavengers daughter, [465-9] 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. [465-10] Among notable prisoners put to the torture were Anne Ascue, the Jesuit Campion, Guy Fawkes, [465-11] and Peacham (who was examined by Bacon "before torture, in torture, and after torture"). [465-12] The prevalence of torture in Elizabeths reign led to the well-known defence attributed to Lord Burghley, "A declaration of the favourable dealing of Her Majestys commissioners appointed for the examination of certain traitors, and of tortures unjustly reported to be done upon them for matter of religion," 1583. [465-13] The use of torture in England being always of an extraordinary and extra-judicial nature, it is 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 [465-14] as a strong objection in the use of torture.
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. [465-15] 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 whipcord was used instead of the peine. This was said to be a common practice at the Old Bailey up to the last century. [465-16] 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, [465-17] 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, Athelstan, and Canute. Bracton, who does not notice torture as a means of obtaining evidence, divides corporal punishment into that inflicted with and without torture. [465-18] 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. c. 48), the mutilation inflicted for violence in a royal palace by 33 Hen. VIII. c. 12, the punishment for high treason, which existed nominally until 1870 (see TREASON), the pillory (abolished by 7 Will. IV. and 1 Vict. c. 23), the stocks, 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 (see SUMMARY JURISDICTION) and of robbery with violence (see THEFT). It was abolished in the army by the Army Act, 1881. [465-19]
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. Some of the more important instances are the following. In 1542 the forfeiture of John, Lord Glammis, was reduced by the parliament as having proceeded on a confession extorted by threats of the "pynebankis." In 1567 four persons were ordered by the Privy Council to be tortured for complicity in Darnleys murder. [465-20] In 1591 a commission issued to torture certain persons accused of witchcraft. [465-21] James VI., in 1596, empowered the provost and bailies of Edinburgh to try rioters by torture. The torture was applied to Rhynd in 1600, on a charge of being privy to the Gowrie House conspiracy.22 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, [465-23] the other of a warrant to a committee to inquire as to the use of torture against persons suspected of witchcraft. [465-24] In 1650 the parliament ordained the committee appointed for the examination of prisoners to intimate to Colonel Sibbald that if his examination were not satisfactory the parliament would ordain him to be tortured. 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 ac complices. 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 tills 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 suspected of corresponding with Lord Dundee. In 1690 in Act passed reciting the torture of William Carstares, a minister, in 1683, and re-establishing his competency as a witness. [466-1] 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 Anne c. 21, § 5. Many details of the tortures inflicted will be found in Pitcairns Criminal Trials and the introduction to Maclaurins Criminal Cases. Among other varietiesthe nature of some of them can only be guessedwere the rack, the pilniewinkis, the boot, [466-2] the caschie-laws, the lang irnis, the narrow-bore, and, worst of all, the waking, or artificial prevention of sleep. [466-3] 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." [466-4] 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 a 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 Queens Majesty." [466-5] In 1583 Hurley, an Irish priest, was tortured in Dublin, by "toasting his feet against the fire with hot boots." [466-6] In the case of Myagh, in 1581, the accused was brought over from Ireland by command of the lord deputy to be tortured in the Tower. [466-7] In 1615 one OKennan was put to the rack in Dublin by virtue of the lord deputys commission. [466-8] In 1627 the lord deputy doubted whether he had authority to put a priest named OCullenan 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." [466-9]
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, [466-10] 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 Kings Bunch, in 1812, decreeing a respite of the defendants 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. [466-11] As to India, the second charge against Warren Hastings was extortion from the begums of Oude by means of the torture of their servants. [466-12] In the present Indian Penal Code and Evidence Act there are provisions intended, as Sir James Stephen says, [466-13] to prevent the practice of torture by the police for the purpose of extracting confessions from persons in their custody. [466-14] In Ceylon torture, which had been allowed under the Dutch government, was expressly abolished by royal proclamation in 1799.
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. [466-15] 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. [466-16] 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. [466-17]
Continental States.The principles of Roman law were generally adopted. Want of space unfortunately prevents a detailed examination of the law of other countries, but that of Italy may fairly be taken as the type of a system which reached at its maturity a certain revolting completeness of which it is difficult to speak with patience. 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 l7th century, where every possible question that could arise is treated with elaborate minuteness. 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 last 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, [466-18] 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. [466-20] It occupies 251 closely printed folio pages with double columns. The length at which the subject is treated is one of the best proofs 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 probahilibus et non necessariis orta, a quibus potest abesse veritas sed non verisimilitudo. For every infliction of torture a distinct indicium is required. 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. An immense variety of tortures is mentioned, the most usual being the tying of one hand only with the cord. 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. Could a priest reveal an acknowledgment of an intended crime made to him in confession? What kinds of reports or how much hearsay evidence constituted fame? How far was a confession allowed to be extorted by blandishments or false promises on the part of the judge? Were there three or five grades in torture? Julius Clarus of Alessandria was a member of the council of Philip II.20 To a great extent he follows Farinaccius. He puts the questions for the consideration of the judge with great clearness. They arewhether (1) 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. He admits the tremendous power given to a judge of torturing a witness should he suspect that the latter knows the truth and is concealing it. An accuser may not, be racked with the accused in order to test his sincerity. 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. 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 13th 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 the customary law was limited, supplemented, or amended by legislation. That a check by legislative authority was neces-sary appears from the glimpses afforded by the writings of the jurists that the letter of the law was by no means always followed.1 The earliest legislation after the Roman law seems to be the constitutions of the emperor Frederick II. for Sicily promulgated in 1231.
Several instances of the torture of eminent persons occur in Italian history. 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 Verri2 and Manzoni,3 and puts in a clear light some of the abuses to which the system led in times of popular panic. Convincing arguments are urged by Manzoni, after an exhaustive review of the authorities, to prove the ground-lessness 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 neces-sary 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.
Much general information on the subject will be found In the works of Mr Lea and Mr Lecky, to which reference has already been made, in the Peiny Cyclopaedia, s.v. "Torture," in Zedlers Universal Lexicon, s.v. "Tortur," and in Meyers Esprit des Institutions Judiciaires. For England, Jardines work is the standard authority. Thirty-six kinds of torture are described in Meyers Konversations-Lexikon, s.v. "Tortur." Instruments of torture are still preserved in the Tower of London and in the museums of Munich, Ratisbon, Nuremberg,The Hague, and other places. Those at the Tower are the iron collar, the bilboes, the thumbscrew, and the scavengers daughter. There is also a model of one of the forms of the rack.
(460-1) But even in these countries, whatever the law was, torture certainly existed in tact.
(460-2) Hallam, Middle Ages, vol. i. p. 282.
(461-1) Pro Sulla, c. 28.
(461-2) De Civ. Dei, bk. xix. c. 6.
(461-3) Dig., xlviii. 18, 23.
(461-4) Essay lxv. (Cottons trans.).
(461-5) Espr. des Lois, bk. vi. c. 17.
(461-6) Dei Delitti e delle Pene, c. xvi.
(461-7) Osservazioni sulla Tortura.
(461-8) Storia della Colonna Infame.
(461-9) Works, vol. vii. p. 525.
(461-10) Nov. Org., bk. i. aph. 98. In the Advancement of Learning, bk. iv, ch. 4, Bacon collects many instances of constancy under torture.
(461-11) Instituts du Droit Criminel, Paris, 1757.
(461-12) De Catholicis Institutionibus Liber, ad praecavendus et extirpandas Haereses admodum necessarius, Rome, 1575.
(461-13) De Tortura ex Foris Christianis non proscribenda, Leipsic, 1733.
(461-14) Law of Laws, p. 122, London, 1686.
(461-15) Rhet., i. 15, 26.
(461-16) 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.
(461-17) See Grote, Hist. of Greece, vol. vii. P. 274.
(461-18) See Dict. of Antiq., s.v. ______. 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.
(461-19) vii. 86.
(461-20) xiii. 7.
(461-21) An interesting one, illustrating the uselessness of torture in the face of courage and resolution, is the abortive result of the torture of a Spanish peasant in 25 A.D. on the charge of being the murderer of Lucius Piso (Tac., Ann., iv. 45). A somewhat similar case, occurring to Sicily, is given by Valerius Maximus, bk. Iii. C. iii. The horrible torture of Epicharis, a freed woman, is described by Tacitus, Ann., xv. 57. In Plinys letter to Trojan (Epist., x. 97), he mentions having put to the torture two Christian deaconesses (ministrae).
(461-22) Quaestio included the whole process of which torture was a part. In the words of Cujacius, "quaestio est interrogation quae fit per tormenta, vel de reis, vel de testibus qui facto intervenisse dicuntur.
(461-23) Dig., xlviii. 18; Cod., ix. 41.
(461-24) v. 14, 15, 16.
(461-25) ix. 35.
(462-1) Cod. ix. 8, 4.
(462-2) Cod., ix. 18, 7.
(462-3) Cod., i. 3, 8.
(462-4) Gaius, i. 13.
(462-5) The evidence on which the accused might be tortured was expressed in Roman law by the terms argumentum and indicium. 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 probation, 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 pirmi or semiplena probatio. The difference between the words may be illustrated by a passage from Justin, "Ad cujus rei probationem immittit indices," xxxii. 2.
(462-6) Dig., xix. 1, 15.
(462-7) Cod., vii. 62, 12.
(462-8) Dig., xxii. 5, 21, 2.
(462-9) Cod., iii. 12, 6.
(462-10) Cod., iii. 12, 10.
(462-11) Cod., ix 47, 16.
(462-12) Cod., ix. 42, 3.
(462-13) Cod., ix. 8, 3.
(462-14) See, for instance, Livy, vi. 26.
(462-15) Cod., i. 4, 23; ix. 5.
(463-1) The well-known lines of Juvenal (Sat., i. 155), "Tseda lucebis in ilia, Qua stantes ardent qui fixo gutture fumant," will serve as an example of such punishments.
(463-2) Nov., cxxxiv.
(463-3) Cod., ix. 9, 37.
(463-4) xvi. 53.
(463-5) Nov. cxxiii. 31. On the subject of torture in Roman law reference may be made to Westphal, Die Torturer der Griechen, Römer, und Deutschen, Leipsic, 1785; Wasserschleben, Historia Quaestionum per Tormenta apud Romanes, Berlin, 1836.
(463-6) This term, which included blasphemy and cognate offences, is used both by ecclesiastical and secular jurists, e.g., by Suarez de Paz and by Jousse, Traité de la Justice Criminelle.
(463-7) See an article by Mr Lea in The English Historical Review, April 1887, "Confiscation for Heresy in the Middle Ages."
(463-8) See Escobar, Mor. Theol., tract, vi. c. 2. They were to be tortured only by the clergy, where possible, and only on indicia of special gravity.
(463-9) Lea, Superstition and Force, p. 419, 3d ed., Philadelphia, 1878.
(463-10) Leges et Constitutiones contra Haereticos, § 26.
(463-11) Lecky, Rationalism in Europe, vol. ii. p. 34, n.
(463-12) Decr , pt. ii. 23, 4, 45.
(463-13) Decr., pt. i. 86, 25.
(463-14) Decr., pt. ii. 12, 2, 11.
(463-15) Decr., pt. ii. 15, 6, 1.
(463-16) The rules will be found in Llorentes Hist. of the Inquisition, cc. vi., xxii.
(463-17) A case of actual Torture occurred in Spain in the case of Van Halen, in 1817, in spite of the papal bull. In South America, as late as 1809, power to torture was conferred on inquisitors by the dean and chapter of Santiago. See Francisco Moyen, or the Inquisition in South America, by B. V. Mackenna (transl. by J. W. Duffy, 1869), p. 217.
(463-18) Prescott, Ferdinand and Isabella, vol. i. p. 327.
(464-1) An edition was published at Rome in 1558, and a compendium at Lisbon in 1762, and by Marchena at Montpellier in 182l.
(464-2) The only edition which the writer has seen is dated Genoa and Perugia, 1653.
(464-3) Motley, Dutch Republic, vol. i. p. 528.
(464-4) Id., p. 329.
(464-5) Llorente, c. xiv.
(464-6) 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 péndola, or swinging pendulum, so graphically described in one of Edgar Poes tales.
(464-7) Ordonnances des Rois, vol. i. p. 346.
(464-8) The history of Dellons narrative of his experiences in the prison of the Inquisition is remarkable. It was translated into English in 1688 by the Rev. R. Wharton, a chaplain of Archbishop Sancroft, but was refused a licence, as being contrary to the kings religion, and the publisher was imprisoned.
(464-9) Theol. Mor., bk. ix. § 202.
(464-10) § 274.
(464-11) 2 Inst., 48b.
(464-12) 2 State Trials, 371.
(464-13) De Laudibus Legum Angliae, c. 22.
(464-14) Commonwealth of England, bk. ii. c. 27. It is curious that Sir T. Smith, with all his hatred of torture, was directed by a warrant under the queens seal alone (not through the council) to torture the duke of Norfolks servants in 1571. In a letter to Lord Burghley he pleaded for exemption from so thankless a task.
(464-15) 2 Inst., 35. Nevertheless, in the trial of Lords Essex and Southampton, Coke is found extolling the queens mercy for not racking or torturing the accused, 1 State Trials, 1338.
(464-16) Jardine, reading on the Use of Torture in the Criminal Law of England (1837), p. 52.
(464-17) Pike, Hist. of Crime in England, vol. i. p. 427.
(465-1) Rymer, Foedera, vol. iii. 228. 232.
(465-2) Hallam, Middle Ages, vol. iii. P. 232.
(465-3) Pike,vol. i. p. 481.
(465-4) 3 Inst., 34.
(465-5) This is the date of the latest warrant in Mr Jardines work.
(465-6) It is to be noticed, as Mr 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.
(465-7) Const. Hist., vol. i. p. 201.
(465-8) Hist. of England, vol. viii., appendix, note v.
(465-9) These two were exactly opposite in principle. The rack stretched the limbs of the suffer; the scavergers daughter compressed him into a ball.
(465-10) Fifty-five of these will be found in the appendix to Mr Jardines work. An ordinary robber of plate was threatened with torture in 1567.Froude, Hist. of England, vol. viii. p. 386.
(465-11) It is not certain whether he was racked, but probably he was, in accordance with the kings 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."
(465-12) Dalrymple, Memoirs and Letters of James I., p. 58; Macaulays Essay on the Works of Bacon.
(465-13) Lord Somers Tracts, vol. i. p. 189.
(465-14) Table Talk, "Trial."
(465-15) Stephen, Hist. of the Criminal Law, vol. i. p. 297.
(465-16) Stephen, vol. i. p. 300; Kelyng Reports, p. 27.
(465-17) The superstition was that any one drawing a witchs blood was free from her power. This is alluded to in Henry VI., pt. i. act. i. sc. 5; "Blood will draw on thee, thou art a witch."
(465-19) 44 Vict. c. 9, § 7.
(465-20) Register of the Privy Council, vol. i. p. 525.
(465-21) Ibid., vol. iv. p. 680.
(465-22) Ibid., vol. vi. p. 156.
(465-23) c. 333.
(465-24) c. 370.
(466-1) The thumbscrew with which Carstares had been tortured was afterwards presented to him as a remembrance by the Privy Council.
(466-2) Persons subjected to more than usual torture from the boot were said to be '"extremely booted."
(466-3) This seems to have been used in one case in England. Lecky, Rationalism in Europe, vol. i. p. 122.
(466-4) Hallam, Const. Hist., vol. iii. p. 436. See Burnet, Hist. of Own Time, vol. i. p. 583, and SCOTLAND, vol. xxi. p. 516.
(466-5) Froude, Hist., of England, vol. ciii. P. 386.
(466-6) Ibid., vol. xi. P. 263.
(466-7) Jardine, p. 29.
(466-8) Cal. State Papers (Irish series, 1615-1625), p. 78.
(466-9) Jardine, p. 54.
(466-10) 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.
(466-11) 30 State Trials, 449.
(466-12) See the Report of the Proceedings, vol. i., Macaulays Essay on Warren Hastings.
(466-13) Stephen, Indian Evidence Act, p. 126.
(466-14) §§ 327-331 of Code; §§ 25-27 of Act.
(466-15) Bouvier, Law Dict., s.v. "Peine Forte et Dure."
(466-16) Amendments, Art. viii.
(466-17) Revised Stat., § 5347.
(466-18) Practica Criminalis quae Aceroida nuncupatur, Venice, 1532.
(466-19) Praxis et Theorica Criminalis, bk. ii. tit. V. quaest, 36-51, Frankfort, 1622.
(466-20) Practica Criminatis Finalis, Lyons, 1637.
Commentary on above article, Torture