CHAPTER XVIII.

REPRESSIVE SECULAR LEGISLATION.

Enlightened legislators were not slow in seconding the efforts of the

papacy. Perhaps the earliest instance of secular legislation directed

against the ordeal, except some charters granted to communes, is an

edict of Philip Augustus in 1200, bestowing certain privileges on the

scholars of the University of Paris, by which he ordered that a citizen

accused of assaulting a student shall not be allowed to defend himself

either by the duel or the water ordeal.[1350] In England, a rescript of

Henry III., dated January 27, 1219, directs the judges then starting on

their circuits to employ other modes of proof—“seeing that the judgment

of fire and water is forbidden by the Church of Rome.”[1351] A few

charters and confirmations, dated some years subsequently, allude to

the privilege of administering it; but Matthew of Westminster, when

enumerating, under date of 1250, the remarkable events of the half

century, specifies its abrogation as one of the occurrences to be

noted,[1352] and we may conclude that thenceforth it was practically

abandoned throughout the kingdom. This is confirmed by the fact that

Bracton, whose treatise was written a few years later, refers only to

the wager of battle as a legal procedure, and, when alluding to other

forms, speaks of them as things of the past. About the same time,

Alexander II. of Scotland forbade its use in cases of theft.[1353]

Nearly contemporary was the Neapolitan Code, promulgated in 1231, by

authority of the Emperor Frederic II., in which he not only prohibits

the use of the ordeal in all cases, but ridicules, in a very curious

passage, the folly of those who could place confidence in it.[1354]

We may conclude, however, that this was not effectual in eradicating

it, for, fifty years later, Charles of Anjou found it necessary to

repeat the injunction.[1355] About the same time, Waldemar II. of

Denmark, Hako Hakonsen of Iceland and Norway; and soon afterwards

Birger Jarl of Sweden, followed the example.[1356] In Frisia we learn

that the inhabitants still refused to obey the papal mandates, and

insisted on retaining the red-hot iron, a contumacy which Emo, the

contemporary Abbot of Wittewerum, cites as one of the causes of the

terrible inundation of 1219;[1357] though a century later the Laws

of Upstallesboom show that ordeals of all kinds had fallen into

desuetude.[1358] In France, we find no formal abrogation promulgated;

but the contempt into which the system had fallen is abundantly proved

by the fact that in the ordinances and books of practice issued

during the latter half of the century, such as the _Établissements_

of St. Louis, the _Conseil_ of Pierre de Fontaines, the _Coutumes du

Beauvoisis_ of Beaumanoir, and the _Livres de Jostice et de Plet_,

its existence is not recognized even by a prohibitory allusion, the

judicial duel thenceforward monopolizing the province of irregular

evidence. Indeed, a Latin version of the Coutumier of Normandy, dating

about the middle of the thirteenth century, or a little earlier, speaks

of it as a mode of proof formerly employed in cases where one of the

parties was a woman who could find no champion to undergo the wager of

battle, adding that it had been forbidden by the Church, and that such

cases were then determined by inquests.[1359]

Germany was more tardy in yielding to the mandates of the Church. The

Teutonic knights who wielded their proselyting swords in the Marches of

Prussia introduced the ordeal among other Christian observances, and in

1222 Honorius III., at the prayer of the Livonian converts, promulgated

a decree by which he strictly interdicted its use for the future.[1360]

Even in 1279 we find the Council of Buda, and in 1298 that of Wurzburg,

obliged to repeat the prohibition uttered by that of Lateran.[1361]

These commands enjoyed little respect, and the independent spirit of

the Empire still refused obedience to the commands of the Church. It

may probably be to Germany that Roger Bacon refers, about this time,

when he speaks of the ordeals of red-hot iron and cold water being

still in use by authority of the Church, and admits that the exorcisms

employed in them by the priests may have virtue in the detection of

guilt and acquittal of innocence.[1362] Even in the fourteenth century

the ancestral customs were preserved in full vigor as regular modes of

procedure in a manual of legal practice still extant. An accusation

of homicide could be disproved only by the judicial combat, while in

other felonies a man of bad repute had no other means of escape than by

undergoing the trial by hot water or iron.[1363]

In Aragon, Don Jayme I. included the ordeal in his prohibition of the

duel when framing laws for his Minorcan conquest in 1230, and that

this was his settled policy is seen by a similar clause of the fuero

of Huesca in 1247.[1364] In Castile and Leon, the charter of Medina de

Pomar, granted in 1219 by Fernando III., provides that there shall be

no trial by the hot-water ordeal,[1365] and that of Treviño in 1254, by

Alfonso X., forbids all ordeals.[1366] Still the Council of Palencia,

in 1322, was obliged to threaten with excommunication all concerned in

administering the ordeal of fire or of water,[1367] which proves how

little had been accomplished by the enlightened code of the “Partidas,”

issued about 1260 by Alfonso the Wise. In this the burden of proof is

expressly thrown upon the complainant, and no negative evidence is

demanded of the defendant, who is specially exempted from the necessity

of producing it;[1368] and although in obedience to the chivalrous

spirit of the age, the battle ordeal is not abolished, yet it is so

limited as to be practically a dead letter, while no other form of

negative proof is even alluded to.

In Italy, even in the middle of the fifteenth century St. Antonino of

Florence considers it necessary, in his instructions to confessors, to

tell them that a judge who prescribes the combat or the red-hot iron

commits mortal sin;[1369] and Angelo da Chiavasco, who died in 1485,

requires confessors to inquire of penitents whether they have ordered

or accepted the hot-iron ordeal.[1370] Even as late as 1599 G. Ferretti

tells us that in some districts of Naples, inhabited by Epirotes,

husbands who suspect their wives of adultery force them to prove their

innocence by the ordeal of red-hot iron or boiling water.[1371]

Although the ordeal was thus removed from the admitted jurisprudence

of Europe, the principles of faith which had given it vitality were

too deeply implanted in the popular mind to be at once eradicated,

and accordingly, as we have seen above, instances of its employment

continued occasionally for several centuries to disgrace the tribunals.

The ordeal of battle, indeed, as shown in the preceding essay, was

not legally abrogated until long afterward; and the longevity of

the popular belief, upon which the whole system was founded, may be

gathered from a remark of Sir William Staundford, a learned judge and

respectable legal authority, who, in 1557, expresses the same confident

expectation of Divine interference which had animated Hincmar or

Poppo. After stating that in an accusation of felony, unsupported by

evidence, the defendant had a right to wager his battle, he proceeds:

“Because in that the appellant demands judgment of death against the

appellee, it is more reasonable that he should hazard his life with the

defendant for the trial of it, than to put it on the country ... and to

leave it to God, to whom all things are open, to give the verdict in

such case, _scilicet_, by attributing the victory or vanquishment to

the one party or the other, as it pleaseth Him.”[1372] Nearly about the

same time, Ciruelo, who for thirty years was Inquisitor at Saragossa,

alludes to cases in which he had personally known of its employment,

thus showing that it was in popular use, even though not prescribed by

the law, in Spain during the middle of the sixteenth century.[1373] In

Germany not long before the learned Aventinus showed plainly that the

existing incredulity which treated all such reliance on God as insanity

was much less to his taste than the pious trust which through ages

of faith had led princes and prelates to place their hope in God and

invoke him with all the solemnities of religion to decide where human

wisdom was at fault.[1374]

* * * * *

While the prohibitions uttered by the papacy had undoubtedly much to

do in influencing monarchs to abolish the ordeal, there were other

causes of scarcely less weight working to the same end. The revival

of the Roman law in the twelfth and thirteenth centuries and the

introduction of torture as an unfailing expedient in doubtful cases did

much to influence the secular tribunals against all ordeals. So, also,

a powerful assistant must be recognized in the rise of the communes,

whose sturdy common sense not infrequently rejected its absurdity.

These influences, however, have been discussed at some length in the

previous essay, and it is scarce worth while to repeat what has there

been said, except to add that, as a recognized legal procedure, the

ordeal succumbed with a less prolonged struggle than the single combat.

Yet no definite period can be assigned to the disappearance in any

country of the appeals to Heaven handed down from our ancestors in

the illimitable past. We have seen above how certain forms of the

ordeal, such as bier-right and the trial by cold water, have lingered

virtually to our own times, though long since displaced from the

statute-book; and we should err if we deemed the prohibition of the

system by lawgivers to be either the effect or the cause of a change in

the constitution of the human mind. The mysterious attraction of the

unknown, the striving for the unattainable, the yearning to connect our

mortal nature with some supernal power—all these mixed motives assist

in maintaining the superstitions which we have thus passed in review.

Even though the external manifestations may have been swept away, the

potent agencies which vivified them have remained, not perhaps less

active because they work more secretly. One generation of follies after

another, strangely affiliated, waits on the successive descendants of

man, and perpetuates in another shape the superstition which seemed

to be eradicated. In its most vulgar and abhorrent form, we recognize

it in the fearful epidemic of sorcery and witchcraft which afflicted

the sixteenth and seventeenth centuries; sublimed to the verge of

heaven, we see it reappear in the seraphic theories of Quietism;

descending again towards earth, it stimulates the mad vagaries of the

Convulsionnaires. In a different guise, it leads the refined scepticism

of the eighteenth century to a belief in the supernatural powers of

the divining rod, which could not only trace out hidden springs and

deep-buried mines, but could also discover crime, and follow the

malefactor through all the doublings of his cunning flight.[1375] Even

at the present day, as various references in the preceding pages

sufficiently attest, there is a lurking undercurrent of superstition

which occasionally rises into view and shows that we are not yet exempt

from the weakness of the past. Each age has its own sins and follies

to answer for—happiest that which best succeeds in hiding them, for

it can scarce do more. Here, at the close of the nineteenth century,

when the triumph of human intelligence over the forces of nature,

stimulating the progress of material prosperity, has deluded us into

sacrificing our psychical to our intellectual being—even here the

duality of our nature reasserts itself, and in the crudity of Mormonism

and in the fantastic mysteries of spiritism we see a protest against

the despotism of mere reason. If we wonder at these perversions of our

noblest attributes, we must remember that the intensity of the reaction

measures the original strain, and in the insanities of the day we thus

may learn how utterly we have forgotten the Divine warning, “Man shall

not live by bread alone!”

IV.

TORTURE.

CHAPTER I.

TORTURE IN EGYPT AND ASIA.

The preceding essays have traced the development of sacramental

purgation and of the ordeal as resources devised by human ingenuity and

credulity when called upon to decide questions too intricate for the

impatient intellect of a rude and semi-barbarous age. There was another

mode, however, of attaining the same object which has received the

sanction of the wisest lawgivers during the greater part of the world’s

history, and our survey of man’s devious wanderings in the search

of truth would be incomplete without glancing at the subject of the

judicial use of torture. The ordeal and torture, in fact, are virtually

substitutes for each other. It will be seen that they have rarely

coexisted, and that, as a general rule, the legislation which depended

on the one rejected the other.

In the early stages of society, the judge or the pleader whose faith

does not lead him to rely upon an appeal to God naturally seeks to

extort from the reluctant witness a statement of what he might desire

to conceal, or from the presumed criminal a confession of his guilt. To

accomplish this, the readiest means would seem to be the infliction of

pain, to escape from which the witness would sacrifice his friends,

and the accused would submit to the penalty of his crime. The means

of administering graduated and effectual torment would thus be sought

for, and the rules for its application would in time be developed

into a regular system, forming part of the recognized principles of

jurisprudence.

In the earliest civilization, that of Egypt, it would seem as though

torture was too opposed to the whole theory of judicial proceedings

to be employed, if we are to believe the description which Diodorus

Siculus gives of the solemn and mysterious tribunals, where written

pleadings alone were allowed, lest the judges should be swayed by the

eloquence of the human voice, and where the verdict was announced, in

the unbroken silence, by the presiding judge touching the successful

suitor with an image of the Goddess of Truth.[1376] Yet a papyrus

recently interpreted gives us a judicial record of a trial, in the

reign of Rameses IX. of the XXth Dynasty (circa 1200 B. C.), of

the robbers of the tomb of the Pharaoh Sebakemsauf, and this shows

how the accused, after confession, were tortured for confirmation,

first by scourging and then by squeezing the hands and feet, showing

that, sometimes at least, this mode of ascertaining the truth was

employed.[1377]

Among the Semitic races we find torture used as a regular judicial

process by the Assyrians,[1378] though the Mosaic jurisprudence is

free from any indication that the Hebrew law-dispensers regarded it

as a legitimate expedient. Earnest advocates of the torture system,

in the eighteenth century, however, did not hesitate to adduce the

ordeal of the bitter water of jealousy as a torture which justified the

employment in modern times of the rack and strappado.

In the earliest Aryan records, so far as we can judge from the

fragments remaining of the Zoroastrian law, torture had no recognized

place. Astyages was rather a Mede than a Persian, and therefore no

conclusion can be drawn from his readiness to employ it when he

sought to extort the truth from unwilling witnesses, as related by

Herodotus;[1379] but the savage punishments which Darius boasts of

inflicting upon the rival pretenders to his throne[1380] presuppose a

readiness to resort to the most violent means of intimidation, which

could scarcely fail to include torture as an extra-judicial means of

investigation when milder methods failed.

To the other great branch of the Aryan stock which founded the Indian

civilization, torture would likewise seem to have been unknown as a

legitimate resource; at least it has left no trace of its existence

in the elaborate provisions of the Hindu law as handed down to us for

nearly three thousand years. In the Institutes of Manu there are very

minute directions as to evidence, the testimony preferred being that of

witnesses, whose comparative credibility is very carefully discussed,

and when such evidence is not attainable, the parties, as we have seen

above, are ordered to be sworn or tried by the ordeal. These principles

have been transmitted unchanged to the present day.[1381]

In China the juristic principles in force would seem to allow no place

for the use of torture (_ante_, p. 251), though doubtless it may be

occasionally resorted to as an extra-judicial expedient. In Japan it

still retains its place in the criminal codes, though we may well

believe the assertion that practically its use has been discarded in

the progress of modern enlightenment. As to its former employment,

however, the directions are very explicit. In the milder form of

scourging it might be used in all preliminary examinations. Where

reasonable moral certainty existed of guilt in serious and capital

crimes, the severer inflictions, by fire, by various mechanical

devices, by deprivation of food and sleep or by exposure to venomous

reptiles, could be invoked to extort confession, the accused being

notified in advance that it would be used if he persisted in asserting

his innocence, and the official ordering it being held personally

responsible for its undue or improper employment.[1382]

CHAPTER II.

GREECE AND ROME.

The absence of torture from the codes of the elder Aryan races is not

to be attributed to any inherent objection to its use, but rather to

the employment of the ordeal, which in all ages formed part of their

jurisprudence, and served as an unfailing resort in all doubtful

cases. When we turn to the Aryans who established themselves in

Europe and abandoned the ancestral custom of the ordeal, we find it

at once replaced by the use of torture. Thus in Greece torture was

thoroughly understood and permanently established. The oligarchical and

aristocratic tendencies, however, which were so strongly developed in

the Hellenic commonwealths, imposed upon it a limitation characteristic

of the pride and self-respect of the governing order. As a general

rule, no freeman could be tortured. Even freedmen enjoyed an

exemption, and it was reserved for the unfortunate class of slaves, and

for strangers who formed no part of the body politic. Yet there were

exceptions, as among the Rhodians, whose laws authorized the torture of

free citizens; and in other states it was occasionally resorted to, in

the case of flagrant political offences; while the people, acting in

their supreme and irresponsible authority, could at any time decree its

application to any one irrespective of privilege. Thus, when Hipparchus

was assassinated by Harmodius, Aristogiton was tortured to obtain a

revelation of the plot, and several similar proceedings are related by

Valerius Maximus as occurring among the Hellenic nations.[1383] The

inhuman torments inflicted on Philotas, son of Parmenio, when accused

of conspiracy against Alexander, show how little real protection

existed when the safety of a despot was in question; and illustrations

of torture decreed by the people are to be seen in the proceedings

relative to the mutilation of the statues of Hermes, and in the

proposition, on the trial of Phocion, to put him, the most eminent

citizen of Athens, on the rack.

In a population consisting largely of slaves, who were generally of the

same race as their masters, often men of education and intelligence and

employed in positions of confidence, legal proceedings must frequently

have turned upon their evidence, in both civil and criminal cases.

Their evidence, however, was inadmissible, except when given under

torture, and then, by a singular confusion of logic, it was estimated

as the most convincing kind of testimony. Consequently, the torturing

of slaves formed an important portion of the administration of Athenian

justice. Either party to a suit might offer his slaves to the torturer

or demand those of his opponent, and a refusal to produce them was

regarded as seriously compromising. When both parties tendered their

slaves, the judge decided as to which of them should be received. Even

without bringing a suit into court, disputants could have their slaves

tortured for evidence with which to effect an amicable settlement.

In formal litigation, the defeated suitor paid whatever damages

his adversary’s slaves might have undergone at the hands of the

professional torturer, who, as an expert in such matters, was empowered

to assess the amount of depreciation that they had sustained. It

affords a curious commentary on the high estimation in which such

testimony was held to observe that, when a man’s slaves had testified

against him on the rack, they were not protected from his subsequent

vengeance, which might be exercised upon them without restriction.

As the laws of Greece passed away, leaving few traces on the

institutions of other races, save on those of Rome, it will suffice to

add that the principal modes in which torture was sanctioned by them

were the wheel, the ladder or rack, the comb with sharp teeth, the low

vault, in which the unfortunate patient was thrust and bent double, the

burning tiles, the heavy hogskin whip, and the injection of vinegar

into the nostrils.[1384]

In the earlier days of Rome, the general principles governing the

administration of torture were the same as in Greece. Under the

Republic, the free citizen was not liable to it, and the evidence of

slaves was not received without it. With the progress of despotism,

however, the safeguards which surrounded the freeman were broken down,

and autocratic emperors had little scruple in sending their subjects to

the rack.

Even as early as the second Triumvirate, a prætor named Q. Gallius, in

saluting Octavius, chanced to have a double tablet under his toga. To

the timid imagination of the future emperor, the angles of the tablet,

outlined under the garment, presented the semblance of a sword, and

he fancied Gallius to be the instrument of a conspiracy against his

life. Dissembling his fears for the moment, he soon caused the unlucky

prætor to be seized while presiding at his own tribunal, and, after

torturing him like a slave without extracting a confession, put him to

death.[1385]

The incident was ominous of the future, when all the powers of the

state were concentrated in the august person of the emperor. He was

the representative and embodiment of the limitless sovereignty of the

people, whose irresponsible authority was transferred to him. The rules

and formularies which had regulated the exercise of power, so long as

it belonged to the people, were feeble barriers to the passions and

fears of Cæsarism. Accordingly, a principle soon became engrafted in

Roman jurisprudence that, in all cases of _crimen majestatis_, or high

treason, the free citizen could be tortured. In striking at the ruler

he had forfeited all rights, and the safety of the state, as embodied

in the emperor, was to be preserved at every sacrifice.

The emperors were not long in discovering and exercising their power.

When the plot of Sejanus was discovered, the historian relates that

Tiberius abandoned himself so entirely to the task of examining by

torture the suspected accomplices of the conspiracy, that when an old

Rhodian friend, who had come to visit him on a special invitation, was

announced to him, the preoccupied tyrant absently ordered him to be

placed on the rack, and on discovering the blunder had him quietly put

to death, to silence all complaints. The shuddering inhabitants pointed

out a spot in Capri where he indulged in these terrible pursuits,

and where the miserable victims of his wrath were cast into the sea

before his eyes, after having exhausted his ingenuity in exquisite

torments.[1386] When the master of the world took this fearful delight

in human agony, it may readily be imagined that law and custom offered

little protection to the defenceless subject, and Tiberius was not the

only one who relished these inhuman pleasures. The half-insane Caligula

found that the torture of criminals by the side of his dinner-table

lent a keener zest to his revels, and even the timid and the beastly

Claudius made it a point to be present on such occasions.[1387]

Under the stimulus of such hideous appetites, capricious and

irresponsible cruelty was able to give a wide extension to the law of

treason. If victims were wanted to gratify the whims of the monarch or

the hate of his creatures, it was easy to find an offender or to make

a crime. Under Tiberius, a citizen removed the head from a statue of

Augustus, intending to replace it with another. Interrogated before

the Senate, he prevaricated, and was promptly put to the torture.

Encouraged by this, the most fanciful interpretation was given to

violations of the respect assumed to be due to the late emperor. To

undress one’s self or to beat a slave near his image; to carry into

a latrine or a house of ill fame a coin or a ring impressed with

his sacred features; to criticize any act or word of his became a

treasonable offence; and finally an unlucky wight was actually put to

death for allowing the slaves on his farm to pay him honors on the

anniversary which had been sacred to Augustus.[1388]

So, when it suited the waning strength of paganism to wreak

its vengeance for anticipated defeat upon the rising energy of

Christianity, it was easy to include the new religion in the convenient

charge of treason, and to expose its votaries to all the horrors of

ingenious cruelty. If Nero desired to divert from himself the odium of

the conflagration of Rome, he could turn upon the Christians, and by

well-directed tortures obtain confessions involving the whole sect,

thus giving to the populace the diversion of a persecution on a scale

until then unknown, besides providing for himself the new sensation of

the human torches whose frightful agonies illuminated his unearthly

orgies.[1389] Diocletian even formally promulgated in an edict the rule

that all professors of the hated religion should be deprived of the

privileges of birth and station, and be subject to the application of

torture.[1390] The indiscriminate cruelty to which the Christians were

thus exposed without defence, at the hands of those inflamed against

them by all evil passions, may, perhaps, have been exaggerated by the

ecclesiastical historians, but that frightful excesses were perpetrated

under sanction of law cannot be doubted by any one who has traced, even

in comparatively recent times and among Christian nations, the progress

of political and religious persecution.[1391]

The torture of freemen accused of crimes against the state or the

sacred person of the emperor thus became an admitted principle of Roman

law. In his account of the conspiracy of Piso, under Nero, Tacitus

alludes to it as a matter of course, and in describing the unexampled

endurance of Epicharis, a freedwoman, who underwent the most fearful

torments without compromising those who possessed little claim upon her

forbearance, the annalist indignantly compares her fortitude with the

cowardice of noble Romans, who betrayed their nearest relatives and

dearest friends at the mere sight of the torture chamber.[1392]

Under these limits, the freeman’s privilege of exemption was carefully

guarded, at least in theory. A slave while claiming freedom, or a

man claimed as a slave, could not be exposed to torture;[1393] and

even if a slave, when about to be tortured, endeavored to escape by

asserting his freedom, it was necessary to prove his servile condition

before proceeding with the legal torments.[1394] In practice, however,

these privileges were continually infringed, and numerous edicts of

the emperors were directed to repressing the abuses which constantly

occurred. Thus we find Diocletian forbidding the application of

torture to soldiers or their children under accusation, unless they

had been dismissed the service ignominiously.[1395] The same emperor

published anew a rescript of Marcus Aurelius declaring the exemption of

patricians and of the higher imperial officers, with their legitimate

descendants to the fourth generation;[1396] and also a dictum of Ulpian

asserting the same privilege in favor of decurions, or local town

councillors, and their children.[1397] In 376, Valentinian was obliged

to renew the declaration that decurions were only liable in cases of

_majestas_, and in 399 Arcadius and Honorius found it necessary to

declare explicitly that the privilege was personal and not official,

and that it remained to them after laying down the decurionate.[1398]

Theodosius the Great, in 385, especially directed that priests should

not be subjected to torture in giving testimony,[1399] the significance

of which is shown by the fact that no slave could be admitted to holy

orders.

The necessity of this constant repetition of the law is indicated by

a rescript of Valentinian, in 369, which shows that freemen were

not infrequently tortured in contravention of law; but that torture

could legally be indiscriminately inflicted by any tribunal in cases

of treason, and that in other accusations it could be authorized

by the order of the emperor.[1400] This power was early assumed

and frequently exercised. Though Claudius at the commencement of

his reign had sworn that he would never subject a freeman to the

question, yet he allowed Messalina and Narcissus to administer torture

indiscriminately, not only to free citizens, but even to knights and

patricians.[1401] So Domitian tortured a man of prætorian rank on a

doubtful charge of intrigue with a vestal virgin,[1402] and various

laws were promulgated by several emperors directing the employment

of torture irrespective of rank, in some classes of accusations.

Thus, in 217, Caracalla authorized it in cases of suspected poisoning

by women.[1403] Constantine decreed that unnatural lusts should be

punished by the severest torments, without regard to the station of

the offender.[1404] Constantius persecuted in like manner soothsayers,

sorcerers, magicians, diviners, and augurs, who were to be tortured

for confession, and then to be put to death with every refinement of

suffering.[1405] So, Justinian, under certain circumstances, ordered

torture to be used on parties accused of adultery[1406]—a practice,

however, which was already common in the fourth century, if we are to

believe the story related by St. Jerome of a miracle occurring in a

case of this nature.[1407] The power thus assumed by the monarch could

evidently be limited only by his discretion in its exercise.

One important safeguard, however, existed, which, if properly

maintained, must have greatly lessened the frequency of torture as

applied to freemen. In bringing an accusation the accuser was obliged

to inscribe himself formally, and was exposed to the _lex talionis_ in

case he failed to prove the justice of the charge.[1408] A rescript

of Constantine, in 314, decrees that in cases of _majestas_, as the

accused was liable to the severity of torture without limitation of

rank, so the accuser and his informers were to be tortured when they

were unable to make good their accusation.[1409] This enlightened

legislation was preserved by Justinian, and must have greatly cooled

the ardor of the pack of calumniators and informers, who, from the days

of Sylla, had been encouraged and petted until they held in their hands

the life of almost every citizen.

In all this it must be borne in mind that the freeman of the Roman law

was a Roman citizen, and that, prior to the extension of citizenship

generally to the subjects of the Empire, there was an enormous class

deprived of the protection, such as it was, of the traditional

exemption. Thus when, in Jerusalem, the Jews raised a tumult and

accused St. Paul, without specifying his offence, the tribune forthwith

ordered “that he should be examined by scourging, that he might know

wherefore they cried so against him;” and when St. Paul proclaimed

himself a Roman, the preparations for his torture were stopped

forthwith, and he was examined by regular judicial process.[1410] The

value of this privilege is fairly exemplified by the envying remark of

the tribune, “With a great sum obtained I this freedom.”

All these laws relate to the extortion of confessions from the accused.

In turning to the treatment of witnesses, we find that even with

them torture was not confined to the servile condition. With slaves

it was not simply a consequence of slavery, but a mode of confirming

and rendering admissible the testimony of those whose character was

not sufficiently known to give their evidence credibility without it.

Thus a legist under Constantine states that gladiators and others

of similar occupation cannot be allowed to bear witness without

torture;[1411] and, in the same spirit, a novel of Justinian, in

539, directs that the rod shall be used to extract the truth from

unknown persons who are suspected of bearing false witness or of being

suborned.[1412]

It may, therefore, readily be imagined that when the evidence of slaves

was required, it was necessarily accompanied by the application of

torture. Indeed, Augustus declared that while it is not to be expressly

desired in trifling matters, yet in weighty and capital cases the

torture of slaves is the most efficacious mode of ascertaining the

truth.[1413] When we consider the position occupied by slavery in the

Roman world, the immense proportion of bondmen who carried on all

manner of mechanical and industrial occupations for the benefit of

their owners, and who, as scribes, teachers, stewards, and in other

confidential positions, were privy to almost every transaction of their

masters, we can readily see that scarce any suit could be decided

without involving the testimony of slaves, and thus requiring the

application of torture. It was not even, as among most modern nations,

restricted to criminal cases. Some doubt, indeed, seems at one time

to have existed as to its propriety in civil actions, but Antoninus

Pius decided the question authoritatively in the affirmative, and this

became a settled principle of Roman jurisprudence, even when the slaves

belonged to masters who were not party to the case at issue.[1414]

There was but one limitation to the universal liability of slaves. They

could not be tortured to extract testimony against their masters,

whether in civil or criminal cases;[1415] though, if a slave had been

purchased by a litigant to get his testimony out of court, the sale

was pronounced void, the price was refunded, and the slave could then

be tortured.[1416] This limitation arose from a careful regard for the

safety of the master, and not from any feeling of humanity towards

the slave. So great a respect, indeed, was paid to the relationship

between the master and his slave that the principle was pushed to its

fullest extent. Thus even an employer, who was not the owner of a

slave, was protected against the testimony of the latter.[1417] When a

slave was held in common by several owners, he could not be tortured

in opposition to any of them, unless one were accused of murdering his

partner.[1418] A slave could not be tortured in a prosecution against

the father or mother of the owner, or even against the guardian, except

in cases concerning the guardianship;[1419] though the slave of a

husband could be tortured against the wife.[1420] Even the tie which

bound the freedman to his patron was sufficient to preserve the former

from being tortured against the latter;[1421] whence we may assume

that, in other cases, manumission afforded no protection from the rack

and scourge. This question, however, appears doubtful. The exemption of

freedmen would seem to be proved by the rescript which provides that

inconvenient testimony should not be got rid of by manumitting slaves

so as to prevent their being subjected to torture;[1422] while, on the

other hand, a decision of Diocletian directs that, in cases of alleged

fraudulent wills, the slaves and even the freedmen of the heir could be

tortured to ascertain the truth.[1423]

This policy of the law in protecting masters from the evidence of

their tortured slaves varied at different periods. From an expression

of Tacitus, it would seem not to have been part of the original

jurisprudence of the Republic, but to have arisen from a special

decree of the Senate. In the early days of the Empire, while the

monarch still endeavored to veil his irresponsible power under the

forms of law, and showed his reverence for ancient rights by evading

them rather than by boldly subverting them, Tiberius, in prosecuting

Libo and Silanus, caused their slaves to be transferred to the public

prosecutor, and was thus able to gratify his vengeance legally by

extorting the required evidence.[1424] Subsequent emperors were not

reduced to these subterfuges, for the principle became established that

in cases of _majestas_, even as the freeman was liable to torture,

so his slaves could be tortured to convict him;[1425] and as if to

show how utterly superfluous was the cunning of Tiberius, the respect

towards the master in ordinary affairs was carried to that point that

no slave could be tortured against a former owner with regard to

matters which had occurred during his ownership.[1426] On the other

hand, according to Ulpian, Trajan decided that when the confession of

a guilty slave under torture implicated his master, the evidence could

be used against the master, and this, again, was revoked by subsequent

constitutions.[1427] Indeed, it became a settled principle of law to

reject all incriminations of accomplices.

Having thus broken down the protection of the citizen against the

evidence of his slaves in accusations of treason, it was not difficult

to extend the liability to other special crimes. Accordingly we

find that, in 197, Septimius Severus specified adultery, fraudulent

assessment, and crimes against the state as cases in which the evidence

of slaves against their masters was admissible.[1428] The provision

respecting adultery was repeated by Caracalla in 214, and afterwards

by Maximus,[1429] and the same rule was also held to be good in cases

of incest.[1430] It is probable that this increasing tendency alarmed

the citizens of Rome, and that they clamored for a restitution of

their immunities, for, when Tacitus was elected emperor, in 275, he

endeavored to propitiate public favor by proposing a law to forbid

the testimony of slaves against their masters except in cases of

_majestas_.[1431] No trace of such a law, however, is found in the

imperial jurisprudence, and the collections of Justinian show that the

previous regulations were in full force in the sixth century.

Yet it is probable that the progress of Christianity produced some

effect in mitigating the severity of legal procedure and in shielding

the unfortunate slave from the cruelties to which he was exposed.

Under the Republic, while the authority of the _paterfamilias_ was

still unabridged, any one could offer his slaves to the torture when

he desired to produce their evidence. In the earlier times, this was

done by the owner himself in the presence of the family, and the

testimony thus extorted was carefully taken down to be duly produced

in court; but subsequently the proceeding was conducted by public

officers—the quæstors and triumviri capitales.[1432] How great was

the change effected is seen by the declaration of Diocletian, in 286,

that masters were not permitted to bring forward their own slaves

to be tortured for evidence in cases wherein they were personally

interested.[1433] This would necessarily reduce the production of

slave testimony, save in accusations of _majestas_ and other excepted

crimes, to cases in which the slaves of third parties were desired as

witnesses; and even in these, the frequency of its employment must have

been greatly reduced by the rule which bound the party calling for

it to deposit in advance the price of the slave, as estimated by the

owner, to remunerate the latter for his death, or for his diminished

value if he were maimed or crippled for life.[1434] When the slave

himself was arraigned upon a false accusation and tortured, an old

law provided that the master should receive double the loss or damage

sustained;[1435] and in 383, Valentinian the Younger went so far as to

decree that those who accused slaves of capital crimes should inscribe

themselves, as in the case of freemen, and should be subjected to the

_lex talionis_ if they failed to sustain the charge.[1436] This was an

immense step towards equalizing the legal condition of the bondman and

his master. It was apparently in advance of public opinion, for the law

is not reproduced in the compilations of Justinian, and probably soon

was disregarded.

* * * * *

There were some general limitations imposed on the application of

torture, but they were hardly such as to prevent its abuse at the

hands of cruel or unscrupulous judges. Antoninus Pius set an example,

which modern jurists might well have imitated, when he directed that

no one should be tortured after confession to implicate others;[1437]

and a rescript of the same enlightened emperor fixes at fourteen

the minimum limit of age liable to torture, except in cases of

_majestas_, when, as we have seen, the law spared no one, for in the

imperial jurisprudence the safety of the monarch overrode all other

considerations.[1438] Women were spared during pregnancy.[1439]

Moderation was enjoined upon the judges, who were to inflict only such

torture as the occasion rendered necessary, and were not to proceed

further at the will of the accuser.[1440] No one was to be tortured

without the inscription of a formal accuser, who rendered himself

liable to the _lex talionis_, unless there were violent suspicions to

justify it;[1441] and Adrian reminded his magistrates that it should

be used for the investigation of truth, and not for the infliction of

punishment.[1442] Adrian further directed, in the same spirit, that

the torture of slave witnesses should only be resorted to when the

accused was so nearly convicted that it alone was required to confirm

his guilt.[1443] Diocletian ordered that proceedings should never be

commenced with torture, but that it might be employed when requisite to

complete the proof, if other evidence afforded rational belief in the

guilt of the accused.[1444]

What was the exact value set upon evidence procured by torture it

would be difficult at this day to determine. We have seen above that

Augustus pronounced it the best form of proof, but other legislators

and jurists thought differently. Modestinus affirms that it is only

to be believed when there is no other mode of ascertaining the

truth.[1445] Adrian cautions his judges not to trust to the torture

of a single slave, but to examine all cases by the light of reason

and argument.[1446] According to Ulpian, the imperial constitutions

provided that it was not always to be received nor always rejected;

in his own opinion it was unsafe, dangerous, and deceptive, for some

men were so resolute that they would bear the extremity of torment

without yielding, while others were so timid that through fear they

would at once inculpate the innocent.[1447] From the manner in which

Cicero alternately praises and discredits it, we can safely assume that

lawyers were in the habit of treating it, not on any general principle,

but according as it might affect their client in any particular case;

and Quintilian remarks that it was frequently objected to on the ground

that under it one man’s constancy makes falsehood easy to him, while

another’s weakness renders falsehood necessary.[1448] That these views

were shared by the public would appear from the often quoted maxim of

Publius Syrus—“Etiam innocentes cogit mentiri dolor”—and from Valerius

Maximus, who devotes his chapter _De Quæstionibus_ to three cases in

which it was erroneously either trusted or distrusted. A slave of M.

Agrius was accused of the murder of Alexander, a slave of C. Fannius.

Agrius tortured him, and, on his confessing the crime, handed him over

to Fannius, who put him to death. Shortly afterwards, the missing

slave returned home. This same Alexander was made of sterner stuff,

for when he was subsequently suspected of being privy to the murder of

C. Flavius, a Roman knight, he was tortured six times and persistently

denied his guilt, though he subsequently confessed it and was duly

crucified.[1449] A somewhat similar case gave Apollonius of Tyana an

opportunity of displaying his supernatural power. Meeting in Alexandria

twelve convicts on their way to execution as robbers, he pronounced

one of them to be innocent, and asked the executioners to reserve him

to the last, and, moreover, delayed them by his conversation. After

eight had been beheaded, a messenger came in hot haste to announce

that Phanion, the one selected by Apollonius, was innocent, though he

had accused himself to avoid the torture.[1450] A curious instance,

moreover, of the little real weight attached to such evidence is

furnished by the case of Fulvius Flaccus, in which the whole question

turned upon the evidence of his slave Philip. This man was actually

tortured eight times, and refused through it all to criminate his

master, who was nevertheless condemned.[1451] The same conclusion is

to be drawn from the story told by St. Jerome of a woman of Vercelli

repeatedly tortured on an accusation of adultery, and finally condemned

to death in spite of her constancy in asserting her innocence, the only

evidence against her being that of her presumed accomplice, extorted

under torment.[1452] Quintus Curtius probably reflects the popular

feeling on the subject, in his pathetic narrative of the torture of

Philotas on a charge of conspiracy against Alexander. After enduring

in silence the extremity of hideous torment, he promised to confess if

it were stopped, and when the torturers were removed he addressed his

brother-in-law Craterus, who was conducting the investigation: “Tell me

what you wish me to say.” Curtius adds that no one knew whether or not

to believe his final confession, for torture is as apt to bring forth

lies as truth.[1453]

From the instances given by Valerius Maximus, it may be inferred that

there was no limit set upon the application of torture. The extent to

which it might be carried appears to have rested with the discretion

of the tribunals, for, with the exception of the general injunctions

of moderation alluded to above, no instructions for its administration

are to be found in the Roman laws which have been preserved to us,

unless it be the rule that when several persons were accused as

accomplices, the judges were directed to commence with the youngest and

weakest.[1454]

Since the time of Sigonius, much antiquarian research has been

directed to investigating the various forms of torture employed by the

Romans. They illustrate no principles, however, and it is sufficient

to enumerate the rack, the scourge, fire in its various forms, and

hooks for tearing the flesh, as the modes generally authorized by law.

The Christian historians, in their narratives of the persecutions to

which their religion was exposed, give us a more extended idea of

the resources of the Roman torture chamber. Thus Prudentius, in his

description of the martyrdom of St. Vincent, alludes to a number of

varieties, among which we recognize some that became widely used in

after times, showing that little was left for modern ingenuity to

invent.[1455]

I have dealt thus at length on the details of the Roman law of torture

because, as will be seen hereafter, it was the basis of all modern

legislation on the subject, and has left its impress on the far less

humane administration of criminal justice in Europe almost to our own

day. Yet at first it seemed destined to disappear with the downfall of

the Roman power.

CHAPTER III.

THE BARBARIANS.

In turning from the nicely poised and elaborate provisions of the

Imperial laws to the crude jurisprudence of the Barbarian hordes who

gradually inherited the crumbling remains of the Empire of the West,

we enter into social and political conditions so different that we

are naturally led to expect a corresponding contrast in every detail

of legislation. For the cringing suppliant of the audience chamber,

abjectly prostrating himself before a monarch who combines in his own

person every legislative and executive function, we have the freeman

of the German forests, who sits in council with his chief, who frames

the laws which both are bound to respect, and who pays to that chief

only the amount of obedience which superior vigor and intellect may be

able to enforce. The structure of such a society is fairly illustrated

by the incident which Gregory of Tours selects to prove the kingly

qualities of Clovis. During his conquest of Gaul, and before his

conversion, his wild followers pillaged the churches with little

ceremony. A bishop, whose cathedral had suffered largely, sent to the

king to request that a certain vase of unusual size and beauty might be

restored to him. Clovis could only promise that if the messenger would

accompany him to Soissons, where the spoils were to be divided, and if

the vase should chance to fall to his share, it should be restored.

When the time came for allotting the plunder, he addressed his men,

requesting as a special favor that the vase might be given to him

before the division, but a sturdy soldier, brandishing his axe, dashed

it against the coveted article, exclaiming, “Thou shalt take nothing

but what the lot assigns to thee.” For a year, Clovis dissembled his

resentment at this rebuff, but at length, when opportunity offered, he

was prompt to gratify it. While reviewing and inspecting his troops,

he took occasion to reproach bitterly the uncourtly Frank with the

condition of his weapons, which he pronounced unserviceable. The

battle-axe excited his especial displeasure. He threw it angrily to the

ground, and as the owner stooped to pick it up, Clovis drove his own

into the soldier’s head, with the remark, “It was thus you served the

vase at Soissons.”[1456]

This personal independence of the freeman is one of the distinguishing

characteristics of all the primitive Teutonic institutions. Corporal

punishments for him were unknown to the laws. The principal resource

for the repression of crime was by giving free scope to the vengeance

of the injured party, and by providing fixed rates of composition by

which he could be bought off. As the criminal could defend himself

with the sword against the _faida_ or feud of his adversary, or could

compound for his guilt with money, the suggestion of torturing him to

extort a confession would seem an absurd violation of all his rights.

Crimes were regarded solely as injuries to individuals, and the idea

that society at large was interested in their discovery, punishment,

and prevention, was entirely too abstract to have any influence on the

legislation of so barbarous an age.

Accordingly, the codes of the Feini, the Ripuarians, the Alamanni, the

Angli and Werini, the Frisians, the Saxons, and the Lombards contain no

allusion to the employment of torture under any circumstances; and such

few directions for its use as occur in the laws of the Salien Franks,

of the Burgundians, and of the Baioarians, do not conflict with the

general principle.

The personal inviolability which shielded the freeman cast no

protection over the slave. He was merely a piece of property, and

if he were suspected of a crime, the readiest and speediest way to

convict him was naturally adopted. His denial could not be received

as satisfactory, and the machinery of sacramental purgation or the

judicial duel was not for him. If he were charged with a theft at

home, his master would undoubtedly tie him up and flog him until he

confessed, and if the offence were committed against a third party, the

same process would necessarily be adopted by the court. Barbarian logic

could arrive at no other mode of discovering and repressing crime among

the friendless and unprotected, whose position seemed to absolve them

from all moral responsibility.

The little that we know of the institutions of the ancient Gauls

presents us with an illustration of the same principle developed in a

somewhat different direction. Cæsar states that, when a man of rank

died, his relatives assembled and investigated the circumstances of his

death. If suspicion alighted upon his wives, they were tortured like

slaves, and if found guilty they were executed with all the refinements

of torment.[1457]

In accordance with this tendency of legislation, therefore, we find

that among the Barbarians the legal regulations for the torture of

slaves are intended to protect the interests of the owner alone. When

a slave was accused of crime the master, indeed, could not refuse to

hand him over to the torturer, unless he were willing to pay for him

the full _wer-gild_ of a freeman, and if the slave confessed under the

torture, the master had no claim for compensation arising either from

the punishment or crippling of his bondman.[1458] When, however, the

slave could not be forced to confess and was acquitted, the owner had a

claim for damages, though no compensation was made to the unfortunate

sufferer himself. The original law of the Burgundians, promulgated

in 471, is the earliest of the Teutonic codes extant, and in that we

find that the accuser who failed to extract a confession was obliged

to give to the owner another slave, or to pay his value.[1459] The

Baioarian law is equally careful of the rights of ownership, but seems

in addition to attach some criminality to the excess of torture by the

further provision that, if the slave die under the torment without

confession, the prosecutor shall pay to the owner two slaves of like

value, and if unable to do so, that he shall himself be delivered up

as a slave.[1460] The Salic law, on the other hand, only guards the

interests of the owner by limiting the torture to 120 blows with a

rod of the thickness of the little finger. If this does not extort a

confession, and the accuser is still unsatisfied, he can deposit with

the owner the value of the slave, and then proceed to torture him at

his own risk and pleasure.[1461]

It will be observed that all these regulations provide merely for

extracting confessions from accused slaves, and not testimony from

witnesses. Indeed, the system of evidence adopted by all the Barbarian

laws for freemen was of so different a character, that no thought

seems to have been entertained of procuring proof by the torture of

witnesses. The only allusion, indeed, to such a possibility shows how

utterly repugnant it was to the Barbarian modes of thought. In some

MSS. of the Salic law there occurs the incidental remark that when a

slave accused is under the torture, if his confession implicates his

master, the charge is not to be believed.[1462]

Such was the primitive legislation of the Barbarians, but though in

principle it was long retained, in practice it was speedily disregarded

by those whom irresponsible power elevated above the law. The Roman

populations of the conquered territories were universally allowed to

live under their old institutions; in fact, law everywhere was personal

and not territorial, every race and tribe, however intermingled on the

same soil, being subjected to its own system of jurisprudence. The

summary process of extracting confessions and testimony which the Roman

practice thus daily brought under the notice of the Barbarians could

not but be attractive to their violent and untutored passions. Their

political system was too loose and undefined to maintain the freedom of

the Sicambrian forests in the wealthy plains of Gaul, and the monarch,

who, beyond the Rhine, had scarce been more than a military chief,

speedily became a despot, whose power over those immediately around

him was limited only by the fear of assassination, and over his more

distant subjects by the facility of revolution.

When all thus was violence, and the law of the strongest was scarcely

tempered by written codes, it is easy to imagine that the personal

inviolability of the freeman speedily ceased to guarantee protection.

Even amid the wild tribes which remained free from the corruptions of

civilization the idea of torturing for confession the friendless and

unprotected was not unfamiliar, and in the Elder Edda we find King

Geirröd using the torment of fire for eight days on Odin, who visits

him in disguise for the purpose of testing his hospitality.[1463]

Among the Gallic Franks, therefore, it need not surprise us to see

irresponsible power readily grasping at such means to gratify hate

or ambition. In the long and deadly struggle between Fredegonda and

Brunhilda, for example, the fierce passions of the adversaries led them

to employ without scruple the most cruel tortures in the endeavor to

fathom each other’s plots.[1464] A single case may be worth recounting

to show how completely torture had become a matter of course as the

first resource in the investigation of doubtful questions. When

Leudastes, about the year 580, desired to ruin the pious Bishop Gregory

of Tours, he accused him to Chilperic I. of slandering the fair fame

of Queen Fredegonda, and suggested that full proof for condemnation

could be had by torturing Plato and Gallienus, friends of the bishop.

He evidently felt that nothing further was required to substantiate

the charge, nor does Gregory himself, in narrating the affair, seem to

think that there was anything irregular in the proposition. Gallienus

and Plato were seized, but from some cause were discharged unhurt. Then

a certain Riculfus, an accomplice of Leudastes, was reproached for

his wickedness by a man named Modestus, whereupon he accused Modestus

to Fredegonda, who promptly caused the unhappy wretch to be severely

tortured without extracting any information from him, and he was

imprisoned until released by the miraculous aid of St. Medard. Finally,

Gregory cleared himself canonically of the imputation, and the tables

were turned. Leudastes sought safety in flight. Riculfus was not so

fortunate. Gregory begged his life, but could not save him from being

tortured for confession. For six hours the wretched man was hung up

with his hands tied behind his back, after which, stretched upon the

rack, he was beaten with clubs, rods, and thongs, by as many as could

get at him, until, as Gregory naïvely remarks, no piece of iron could

have borne it. At last, when nearly dead, his resolution gave way, and

he confessed the whole plot by which it had been proposed to get rid of

Chilperic and Fredegonda, and to place Clovis on the throne.[1465] Now,

Plato, Gallienus, and Modestus were probably of Gallo-Roman origin, but

Riculfus was evidently of Teutonic stock; moreover, he was a priest,

and Plato an archdeacon, and the whole transaction shows that Roman law

and Frankish law were of little avail against the unbridled passions of

the Merovingian.

CHAPTER IV.

THE GOTHS AND SPAIN.

Of all the Barbarian tribes, none showed themselves so amenable to the

influences of Roman civilization as the Goths. Their comparatively

settled habits, their early conversion to Christianity, and their

position as allies of the empire long before they became its

conquerors, rendered them far less savage under Alaric than were the

Franks in the time of Clovis. The permanent occupation of Septimania

and Catalonia by the Wisigoths, also, took place at a period when

Rome was not as yet utterly sunk, and when the power of her name

still possessed something of its ancient influence, which could not

but modify the institutions of the new-comers as they strove to adapt

their primitive customs to the altered circumstances under which they

found themselves. It is not to be wondered at, therefore, if their

laws reflect a condition of higher civilization than those of kindred

races, and if the Roman jurisprudence has left in them traces of the

appreciation of that wonderful work of the human intellect which the

Goths were sufficiently enlightened to entertain.

The Ostrogoths, allowing for the short duration of their nationality,

were even more exposed to the influences of Rome. Their leader,

Theodoric, had been educated in Constantinople, and was fully as much a

Roman as many of the Barbarian soldiers who had risen to high station

under the emperors, or even to the throne itself. All his efforts were

directed to harmonizing the institutions of his different subjects, and

he was too sagacious not to see the manifest superiority of the Roman

polity.

His kingdom was too evanescent to consolidate and perfect its

institutions or to accumulate any extended body of jurisprudence. What

little exists, however, manifests a compromise between the spirit of

the Barbarian tribes of the period and that of the conquered mistress

of the world. The Edict of Theodoric does not allude to the torture of

freemen, and it is probable that the free Ostrogoth could not legally

be subjected to it. With respect to slaves, its provisions seem mainly

borrowed from the Roman law. No slave could be tortured against a third

party for evidence unless the informer or accuser was prepared to

indemnify the owner at his own valuation of the slave. No slave could

be tortured against his master, but the purchase of a slave to render

his testimony illegal was pronounced null and void; the purchase money

was returned, and the slave was tortured. The immunity of freedmen is

likewise shown by the cancelling of any manumission conferred for the

purpose of preventing torture for evidence.[1466] Theodoric, however,

allowed his Roman subjects to be governed by their ancient laws, and

he apparently had no repugnance to the use of torture when it could

legally be inflicted. Thus he seems particularly anxious to ferret

out and punish sorcerers, and in writing to the Prefect and Count of

Rome he urges them to apprehend certain suspected parties, and try

them by the regular legal process, which, as we have seen, by the

edicts of Constantius and his successors, was particularly severe in

enjoining torture in such cases, both as a means of investigation and

of punishment.[1467]

On the other hand, the Wisigoths founded a permanent state, and as they

were the only race whose use of torture was uninterrupted from the

period of their settlement until modern times, and as their legislation

on the subject was to a great extent a model for that of other nations,

it may be worth while to examine it somewhat closely.

The earliest code of the Wisigoths is supposed to have been compiled

by Eurik, in the middle of the fifth century, but it was subsequently

much modified by recensions and additions. It was remoulded by

Chindaswind and Recaswind about the middle of the seventh century,

and it has reached us only in this latest condition, while the MSS.

vary so much in assigning the authorship of the various laws that but

little reliance can be placed upon the assumed dates of most of them.

Chindaswind, moreover, in issuing his revised code, prohibited for the

future the use of the Roman law, which had previously been in force

among the subject populations, under codes specially prepared for them

by order of Alaric II. Thus the Wisigothic laws, as we have them, are

not laws of race, like the other Barbarian codes, but territorial laws

carefully digested for a whole nation by men conversant alike with the

Roman and with their own ancestral jurisprudence.

It is therefore not surprising to find in them the use of torture

legalized somewhat after the fashion of the imperial constitutions,

and yet with some humane modifications and restrictions. Slaves were

liable to torture under accusation, but the accuser had first to make

oath that he was actuated by neither fraud nor malice in preferring

the charge; and he was further obliged to give security that he would

deliver to the owner another slave of equal value if the accused were

acquitted. If an innocent slave were crippled in the torture, the

accuser was bound to give two of like value to the owner, and the

sufferer received his freedom. If the accused died under the torture,

the judge who had manifested so little feeling and discretion in

permitting it was also fined in a slave of like value, making three

enuring to the owner, and careful measures were prescribed to insure

that a proper valuation was made. If the accuser was unable to meet

the responsibility thus incurred, he was himself forfeited as a slave.

Moreover, the owner was always at liberty to save his slave from the

torture by proving his innocence otherwise if possible; and if he

succeeded, the accuser forfeited to him a slave of equal value, and

was obliged to pay all the costs of the proceedings.[1468]

Freedmen were even better protected. They could only be tortured for

crimes of which the penalties exceeded a certain amount, varying with

the nature of the freedom enjoyed by the accused. If no confession were

extorted, and the accused were crippled in the torture, the judge and

the accuser were both heavily fined for his benefit, and if he died,

the fines were paid to his family.[1469]

There could have been little torturing of slaves as witnesses, for in

general their evidence was not admissible, even under torture, against

any freeman, including their masters. The slaves of the royal palace,

however, could give testimony as though they were freemen,[1470] and,

as in the Roman law, there were certain excepted crimes, such as

treason, adultery, homicide, sorcery, and coining, in accusations of

which slaves could be tortured against their masters, nor could they be

preserved by manumission against this liability.[1471]

As regards freemen, the provisions of different portions of the code

do not seem precisely in harmony, but all of them throw considerable

difficulties in the way of procedures by torture. An early law directs

that, in cases of theft or fraud, no one shall be subjected to torture

unless the accuser bring forward the informer, or inscribe himself with

three sureties to undergo the _lex talionis_ in case the accused prove

innocent. Moreover, if no confession were extorted, the informer was

to be produced. If the accuser could not do this, he was bound to name

him to the judge, who was then to seize him, unless he were protected

by some one too powerful for the judicial authority to control. In

this event it was the duty of the judge to summon the authorities to

his aid, and in default of so doing he was liable for all the damages

arising from the case. The informer, when thus brought within control

of the court, was, if a freeman, declared infamous, and obliged to

pay ninefold the value of the matter in dispute; if a slave, sixfold,

and to receive a hundred lashes. If the freeman were too poor to pay

the fine, he was adjudged as a slave in common to the accuser and the

accused.[1472]

A later law, issued by Chindaswind, is even more careful in its very

curious provisions. No accuser could force to the torture a man higher

in station or rank than himself. The only cases in which it could be

inflicted on nobles were those of treason, homicide, and adultery,

while for freemen of humbler position the crime must be rated at a

fine of 500 solidi at least. In these cases, an open trial was first

prescribed. If this were fruitless, the accuser who desired to push

the matter bound himself in case of failure to deliver himself up as

a slave to the accused, who could maltreat him at pleasure, short of

taking his life, or compound with him at his own valuation of his

sufferings. The torture then might last for three days; the accuser

himself was the torturer, subject to the supervision of the judge, and

might inflict torment to any extent that his ingenuity could suggest,

short of producing permanent injury or death. If death resulted, the

accuser was delivered to the relatives of the deceased to be likewise

put to death; the judge who had permitted it through collusion or

corruption was exposed to the same fate, but if he could swear that

he had not been bribed by the accuser, he was allowed to escape

with a fine of 500 solidi. A very remarkable regulation, moreover,

provided against false confessions extorted by torment. The accuser

was obliged to draw up his accusation in all its details, and submit

it secretly to the judge. Any confession under torture which did not

agree substantially with this was set aside, and neither convicted the

accused nor released the accuser from the penalties to which he was

liable.[1473]

Under such a system, strictly enforced, few persons would be found

hardy enough to incur the dangers of subjecting an adversary to

the rack. As with the Franks, however, so among the Wisigoths, the

laws were not powerful enough to secure their own observance. The

authority of the kings grew gradually weaker and less able to repress

the assumptions of ambitious prelates and unruly grandees, and it is

easy to imagine that in the continual struggle all parties sought to

maintain and strengthen their position by an habitual disregard of law.

At the Thirteenth Council of Toledo, in 683, King Erwig, in his opening

address, alludes to the frequent abuse of torture in contravention

of the law, and promises a reform. The council, in turn, deplores

the constantly recurring cases of wrong and suffering wrought “regiæ

subtilitatis astu vel profanæ potestatis instinctu,” and proceeds to

decree that in future no freeman, noble, or priest shall be tortured

unless regularly accused or indicted, and properly tried in public; and

this decree duly received the royal confirmation.[1474]

As the Goths emerge again into the light of history after the

Saracenic conquest, we find these ancient laws still in force among

the descendants of the refugees who had gathered around Don Pelayo.

The use of the Latin tongue gradually faded out among them, and about

the twelfth or thirteenth century the Wisigothic code was translated

into the popular language, and this Romance version, known as the

_Fuero Juzgo_, long continued the source of law in the Peninsula.

In this, the provisions of the early Gothic monarchs respecting

torture are textually preserved, with two trifling exceptions, which

may reasonably be regarded as scarcely more than mere errors of

copyists.[1475] Torture was thus maintained in Spain as an unbroken

ancestral custom, and the earliest reference which I have met with

of it in mediæval jurisprudence occurs in 1228, when Don Jayme el

Conquistador of Aragon forbade his representatives from commencing

proceedings by its employment without special orders.[1476] When

Alfonso the Wise, about the middle of the thirteenth century, attempted

to revise the jurisprudence of his dominions, in the code known as

_Las Siete Partidas_, which he promulgated, he only simplified and

modified the proceedings, and did not remove the practice. Although he

proclaimed that the person of man is the noblest thing of earth—“La

persona del home es la mas noble cosa del mundo”[1477]—he held that

stripes and other torture inflicted judicially were no dishonor even

to Spanish sensitiveness.[1478] Asserting that torture was frequently

requisite for the discovery of hidden crimes,[1479] he found himself

confronted by the Church, which taught, as we shall see hereafter, that

confessions extorted under torture were invalid. To this doctrine he

gave his full assent,[1480] and then, to reconcile these apparently

incompatible necessities, he adopted an expedient partially suggested

not long before by Frederic II., which subsequently became almost

universal throughout Europe, whereby the prohibition of conviction on

extorted confessions was eluded. After confession under torture, the

prisoner was remanded to his prison. On being subsequently brought

before the judge he was again interrogated, when, if he persisted

in his confession, he was condemned. If he recanted, he was again

tortured; and, if the crime was grave, the process could be repeated a

third time; but, throughout all, he could not be convicted unless he

made a free confession apart from the torture. Even after conviction,

moreover, if the judge found reason to believe that the confession

was the result of fear of the torture, or of rage at being tortured,

or of insanity, the prisoner was entitled to an acquittal.[1481] The

humane interference of the Church thus resulted only in a redoublement

of cruelty; and the system once introduced, speedily tended to break

down the limits imposed on it. In a little more than half a century

after the death of Alfonso, judges were in the habit of not contenting

themselves with three inflictions, but continued the torture as long

as the prisoner confessed on the rack and retracted his confession

subsequently.[1482]

Alfonso’s admiration of the Roman law led him to borrow much from

it rather than from the Gothic code, though both are represented in

the provisions which he established. Thus, except in accusations of

treason, no one of noble blood could be tortured, nor a doctor of

laws or other learning, nor a member of the king’s council, or that

of any city or town, except for official forgery, nor a pregnant

woman, nor a child under fourteen years of age.[1483] So, when several

accomplices were on trial, the torturer was directed to commence with

the youngest and worst trained, as the truth might probably be more

readily extracted from him.[1484] The provision, also, that when

a master, or mistress, or one of their children was found dead at

home, all the household slaves were liable to torture in the search

for the murderer, bears a strong resemblance to the cruel law of the

Romans, which condemned them to death in case the murderer remained

undiscovered.[1485]

The regulations concerning the torture of slaves are founded, with

little variation, on the Roman laws. Thus, the evidence of a slave

was only admissible under torture, and no slave could be tortured to

prove the guilt of a present or former owner, nor could a freedman,

in a case concerning his patron, subject to the usual exceptions

which we have already seen. The excepted crimes enumerated by Alfonso

are seven, viz.: adultery, embezzlement of the royal revenues by tax

collectors, high treason, murder of a husband or wife by the other,

murder of a joint owner of a slave by his partner, murder of a testator

by a legatee, and coining. With the slave, as with the freeman, all

testimony under torture required subsequent confirmation.[1486]

There is one noteworthy innovation, however, in the Partidas which was

subsequently introduced widely into the torture codes of Europe, and

which, in theory at least, greatly extended their sphere of action.

This was the liability of freemen as witnesses. When a man’s evidence

was vacillating and contradictory, so as to afford reasonable suspicion

that he was committing perjury, all criminal judges were empowered to

subject him to torture, so as to ascertain the truth, provided always

that he was of low condition, and did not belong to the excepted

classes.[1487]

With all this, there are indications that Alfonso designed rather

to restrict than to extend the use of torture, and, if his general

instructions could have been enforced, there must have been little

occasion for its employment under his code. In one passage he directs

that when the evidence is insufficient to prove a charge, the accused,

if of good character, must be acquitted; and in another he orders its

application only when common report is adverse to a prisoner, and he is

shown to be a man of bad repute.[1488] Besides, an accuser who failed

to prove his charge was always liable to the _lex talionis_, unless he

were prosecuting for an offence committed on his own person, or for

the murder of a relative not more distant than a brother or sister’s

child.[1489] The judge, moreover, was strictly enjoined not to exceed

the strict rules of the law, nor to carry the torture to a point

imperilling life or limb. If he deviated from these limits, or acted

through malice or favoritism, he was liable to a similar infliction

on his own person, or to a penalty greater than if he were a private

individual.[1490] The liability of witnesses was further circumscribed

by the fact that in cases involving corporal punishment, no one could

be forced to bear testimony who was related to either of the parties

as far as the fourth degree of consanguinity, in either the direct

or collateral lines, nor even when nearly connected by marriage, as

in the case of fathers-in-law, step-children, etc.[1491] Orders to

inflict torture, moreover, were one of the few procedures which could

be appealed from in advance.[1492] Several of these limitations became

generally adopted through Europe. We shall see, however, that they

afforded little real protection to the accused, and it is more than

probable that they received as little respect in Spain as elsewhere.

There were many varieties of torture in use at the period, but Alfonso

informs us that only two were commonly employed, the scourge and the

strappado, which consisted in hanging the prisoner by the arms while

his back and legs were loaded with heavy weights.[1493] The former of

these, however, seems to be the only one alluded to throughout the code.

As a whole, the Partidas were too elaborate and too much in advance

of the wants of the age to be immediately successful as a work of

legislation, and they were not confirmed by the Córtes until 1348. In

the Ordenamiento de Alcalà of Alfonso XI., issued in-that year, they

are referred to as supplying all omissions in subsequent codes.[1494]

It is probable that in his system of torture Alfonso the Wise merely

regulated and put into shape the customs prevalent in his territories,

for the changes in it which occurred during the succeeding three or

four centuries are merely such as can be readily explained by the

increasing influence of the revived Roman jurisprudence, and the

introduction of the doctrines of the Inquisition with respect to

criminal procedures. In the final shape which the administration of

torture assumed in Castile, as described by Villadiego, an eminent

legist writing about the year 1600, it was only employed when the proof

was strong, and yet not sufficient for conviction. No allusion is made

to the torture of witnesses, and Villadiego condemns the cruelty of

some judges who divide the torture into three days in order to render

it more effective, since, after a certain prolongation of torment, the

limbs begin to lose their sensibility, which is recovered after an

interval, and on the second and third days they are more sensitive than

at first. This he pronounces rather a repetition than a continuation

of torture, and repetition was illegal unless rendered necessary by

the introduction of new testimony.[1495] As in the thirteenth century,

nobles, doctors of law, pregnant women, and children under fourteen

were not liable, except in cases of high treason and some other

heinous offences. The clergy also were now exempted, unless previously

condemned as infamous, and advocates engaged in pleading enjoyed a

similar privilege. With the growth of the Inquisition, however, heresy

had now advanced to the dignity of a crime which extinguished all

prerogatives, for it was held to be a far more serious offence to be

false to Divine than to human majesty.[1496] The Partidas allow torture

in the investigation of comparatively trivial offences, but Villadiego

states that it should be employed only in the case of serious crimes,

entailing bodily punishment more severe than the torture itself,

and torture was worse than the loss of the hands. Thus, when only

banishment, fines, or imprisonment were involved, it could not be

used. The penalties incurred by judges for its excessive or improper

application were almost identical with those prescribed by Alfonso,

and the limitation that it should not be allowed to endanger life or

limb was only to be exceeded in the case of treason, when the utmost

severity was permissible.[1497] In 1489 Ferdinand and Isabella had

directed that no criminal case should be heard by less than three

alcaldes or judges sitting together, and torture could not be employed

without a formal decision signed unanimously by all three. In 1534

Charles V. called attention to the neglect of this rule, whereby the

accused was deprived of the right of appeal, and he ordered that it

should be strictly observed in future—regulations which duly maintained

their place on the statute book as long as the use of torture was

continued.[1498]

Many varieties were in use, but the most common were the strappado and

pouring water down the throat; but when the accused was so weak as to

render these dangerous, fire was applied to the soles of the feet;

and the use of the scourge was not unusual. As in the ancient laws,

the owner of slaves was entitled to compensation when his bondmen

were unjustly tortured. If there was no justification for it, he was

reimbursed in double the estimated value; if the judge exceeded the

proper measure of torment, he made it good to the owner with another

slave.[1499]

Whatever limitations may theoretically have been assigned to the

application of torture, however, it is probable that they received

little respect in practice. Simancas, Bishop of Badajos, who was a

little anterior to Villadiego, speaks of it as a generally received

axiom that scarcely any criminal accusation could be satisfactorily

tried without torture.[1500] This is confirmed by the account recently

discovered by Bergenroth of the secret history of the execution of Don

Carlos, for, whether it be authentic or not, it shows how thoroughly

the use of torture had interpenetrated the judicial system of Spain. It

states that when Philip II. determined to try his wretched son for the

crime of encouraging the rebellious movements in the Netherlands, and

the prince denied the offence, torture was applied until he fainted,

and, on recovering his senses, consented to confess in order to escape

the repetition which was about to be applied. It is hardly to be

believed that even a Spanish imagination could invent the dark and

terrible details of this dismal story; and even if it be not true, its

author must have felt that such an incident was too probable to destroy

its vraisemblance.

At the same time, Castilian justice kept itself free from one of the

worst abuses which, as we shall see hereafter, grew out of the use of

torture, in the secret inquisitorial process which established itself

almost everywhere. A law of Alfonso XI. issued in 1325 peremptorily

ordered that the accused should not be denied the right to know the

contents of the inquest made with respect to him, and that the names of

the witnesses should be communicated to him so that he could defend

himself freely and have all the means to which he was entitled of

establishing his innocence. Ferdinand and Isabella, moreover, in 1480,

decreed that all who desired counsel should be allowed the privilege,

those who were poor being furnished at the public expense, and no

torture could be inflicted before this was complied with. These laws,

which offer so creditable a contrast to the legislation of other lands,

remained in force and were embodied in the Recopilacion.[1501]

CHAPTER V.

CARLOVINGIAN AND FEUDAL LAW.

In turning to the other barbarian races which inherited the fragments

of the Roman empire, we find that the introduction of torture as

a recognized and legal mode of investigation was long delayed.

Under the Merovingians, as we have seen, its employment, though not

infrequent, was exceptional and without warrant of law. When the slow

reconstruction of society at length began, the first faint trace

of torture is to be found in a provision respecting the crimes of

sorcery and magic. These were looked upon with peculiar detestation,

as offences against both God and man. It is no wonder then if the

safeguards which the freeman enjoyed under the ordinary modes of

judicial procedure were disregarded in the cases of those who violated

every law, human and divine. The legislation of Charlemagne, indeed,

was by no means merciful in its general character. His mission was to

civilize, if possible, the savage and turbulent races composing his

empire, and he was not overnice in the methods selected to accomplish

the task. Still, he did not venture, even if he desired, to prescribe

torture as a means of investigation, except in the case of suspected

sorcerers, for whom, moreover, it is ordered indirectly rather than

openly.[1502] Yet, by this time, the personal inviolability of the

freeman was gone. The infliction of stripes and of hideous mutilations

is frequently directed in the Capitularies, and even torture and

banishment for life are prescribed as a punishment for insulting

bishops and priests in church.[1503]

This apparent inconsistency is only a repetition of what we have

seen in the Persian and Indian institutions, where torture was

superfluous in the presence of other forms of proof, and in Greece

and Rome where it makes its appearance in the absence of those forms.

Though there was no theoretical objection to torture as a process of

investigation, yet there was no necessity for its employment as a means

of evidence. That the idea of thus using it in matters of great moment

was not unfamiliar to the men of that age is evident when we find it

officially stated that the accomplices of Bernard, King of Italy, in

his rebellion against Louis le Débonnaire, in 817, on their capture

confessed the whole plot without being put to the torture.[1504] Such

instances, however, were purely exceptional. In ordinary matters, there

was a complete system of attack and defence which supplemented all

deficiencies of testimony in doubtful cases. Sacramental purgation,

the wager of battle, and the various forms of vulgar ordeals were not

only primæval customs suited to the feelings and modes of thought of

the race, but they were also much more in harmony with the credulous

faith inculcated by the Church, and the Church had by this time entered

on the career of temporal supremacy which gave it so potent a voice

in fashioning the institutions of European society. For all these,

the ministrations of the ecclesiastic were requisite, and in many of

them his unseen agency might prove decisive. On the other hand, the

humane precepts which forbade the churchman from intervening in any

manner in judgments involving blood precluded his interference with the

torture chamber; and in fact, while torture was yet frequent under the

Merovingians, the canons of various councils prohibited the presence

of any ecclesiastic in places where it was administered.[1505] Every

consideration, therefore, would lead the Church in the ninth century to

prefer the milder forms of investigation, and to use its all-powerful

influence in maintaining the popular belief in them. The time had not

yet come when, as we shall see hereafter, the Church, as the spiritual

head of feudal Christendom, would find the ordeal unnecessary and

torture the most practicable instrumentality to preserve the purity of

faith and the steadfastness of implicit obedience.

In the ninth century, moreover, torture was incompatible with the forms

of judicial procedure handed down as relics of the time when every

freeman bore his share in the public business of his sept. Criminal

proceedings as yet were open and public. The secret inquisitions

which afterwards became so favorite a system with lawyers did not

then exist. The _mallum_, or court, was perhaps no longer held in the

open air,[1506] nor were the freemen of the district constrained as

of old to be present,[1507] but it was still free to every one. The

accuser and his witnesses were confronted with the accused, and the

criminal must be present when his sentence was pronounced.[1508] The

purgatorial oath was administered at the altar of the parish church;

the ordeal was a public spectacle; and the judicial duel drew thousands

of witnesses as eager for the sight of blood as the Roman plebs. These

were all ancestral customs, inspiring implicit reverence, and forming

part of the public life of the community. To substitute for them the

gloomy dungeon through whose walls no echo of the victim’s screams

could filter, where impassible judges coldly compared the incoherent

confession wrung out by insufferable torment with the anonymous

accusation or the depositions of secret witnesses, required a total

change in the constitution of society.

The change was long in coming. Feudalism arose and consolidated its

forces on the ruins of the Carlovingian empire without altering the

principles upon which the earlier procedures of criminal jurisdiction

had been based. As the local dignitaries seized upon their fiefs and

made them hereditary, so they arrogated to themselves the dispensation

of justice which had formerly belonged to the central power, but their

courts were still open to all. Trials were conducted in public upon

well-known rules of local law and custom; the fullest opportunities

were given for the defence; and a denial of justice authorized the

vassal to renounce the jurisdiction of his feudal lord and seek a

superior court.[1509]

Still, as under the Merovingians, torture, though unrecognized

by law, was occasionally employed as an extraordinary element of

judicial investigation, as well as a means of punishment to gratify

the vengeance of the irresponsible and cruel tyrants who ruled with

absolute sway over their petty lordships. A few such instances occur in

the documents and chronicles of the period, but the terms in which they

are alluded to show that they were regarded as irregular.

Thus, it is related of Wenceslas, Duke of Bohemia, in the early part

of the tenth century, that he destroyed the gibbets and fearful

instruments of torture wherewith the cruelty of his judges had been

exercised, and that he never allowed them to be restored.[1510] An

individual case of torture which occurred in 1017 has chanced to be

preserved to us by its ending in a miracle, and being the occasion of

the canonization of a saint. A pious pilgrim, reputed to belong to

the royal blood of Scotland, while wandering on the marches between

the Bavarians and the Moravians, was seized by the inhabitants on

suspicion of being a spy, and, to extort a confession, was exposed to

a succession of torments which ended in hanging him on a withered

tree until he died. The falsity of the accusation and the sanctity of

the victim were manifested by the uninterrupted growth of his hair and

nails and the constant flowing of blood from a wound, while the dead

tree suddenly put forth leaves and flowers. Margrave Henry of Bavaria

had him reverently buried, and he was duly enrolled in the catalogue of

saints.[1511] A letter of Gerard, Bishop of Cambrai, in 1025, relating

how certain suspected heretics could not be forced by torment to

confession, shows that ecclesiastics already were prepared, in spite

of the received dogmas of the Church, to have recourse to such means

when no others could be found to protect the purity of the faith.[1512]

In the celebrated case, also, of the robbery of the church of Laon,

about the year 1100, the suspected thief, after conviction by the cold

water ordeal, was tortured by command of the bishop in order to make

him surrender the sacred vessels which he had concealed. Basting with

hot lard was tried unsuccessfully; he was then hanged by the neck

and let down at intervals for nearly a whole day, and when life was

almost extinct his resolution gave way and he agreed to discover the

place where the valuables were hidden.[1513] When Charles the Good of

Flanders was murdered in 1127, one of the assassins fled to Terouane,

where he was discovered and forced by scourging to disclose the names

of his accomplices.[1514] About 1130 at Petersberg, in Saxony, we are

told of a shepherd tortured by his lord to extract money, and saved

from suffering by an earnest prayer to St. Peter.[1515] When Richard I.

of England was endeavoring to return through Germany from the crusade,

it was by the torture of his page that the identity of the royal

traveller was discovered, and he was delivered to his enemy the Duke of

Austria.[1516]

These are evidently rather sporadic and exceptional cases than

indications of any systematic introduction of the practice. A more

significant allusion, however, is found in the reproof administered,

about 1125, by Hildebert, Bishop of le Mans, to one of his priests, who

had been concerned in the torture of a suspected thief, for the purpose

of extracting a confession. Hildebert argues that the infliction of

torture for confession is a matter for judicial decision and not of

Church discipline, and therefore not fit for a clerk to be engaged

in.[1517] This would seem to show that it occasionally was a recognized

means of proof in the lay tribunals of the period, though as yet not

favored by the Church. If so, no record of its introduction or evidence

of its customary use has been preserved to us, though there is abundant

evidence of its employment as a punishment and for the extortion of

money.

As a punishment legally inflicted, we find it prescribed, in 1168, by

Frederic Barbarossa in cases of petty thefts,[1518] and in the next

century by Frederic II. as a penalty for high treason.[1519] Special

cases, too, may be instanced, where its infliction on a large scale

shows that the minds of men were not unfamiliar with its use. Thus

when, in 1125, the inhabitants of Erfurt were guilty of some outrages

on the imperial authority, and the town was besieged and captured by

the Emperor Lothair, the chronicler relates that large numbers of the

citizens were either killed, blinded, or tortured in various ways by

the vindictive conqueror,[1520] and in 1129 he treated the citizens of

Halle in the same manner.[1521]

Even towards the close of the thirteenth century, we find Rodolph of

Hapsburg interfering in favor of a prisoner whom one of his nobles was

afflicting with cruel torments. The Emperor, however, does not venture

to command, but merely entreats that the tortures be suspended until he

shall have an interview with the aggressor.[1522]

So summary and effective a mode of forcing the weak and unprotected

to ransom themselves was not likely to be overlooked in those ages

of violence, and though the extra-judicial use of torture is foreign

to our purpose, yet, as showing how men educated themselves in its

employment, it may be worth while to allude briefly to this aspect

of the subject. Thus, Duke Swantopluck of Bohemia, in a marauding

expedition into Hungary in 1108, caused to be racked or put to death

all prisoners who could not purchase escape by heavy ransoms.[1523]

At the same period, Germany is described to us by an eye-witness as

covered with feudal chieftains who lived a life of luxury by torturing

the miserable wretches that could scarce obtain bread and water for

their own existence.[1524] In Spain, the same means were understood

and employed by the savage nobles of that barbarous period.[1525]

In England, the fearful anarchy which prevailed under King Stephen

encouraged a similar condition of affairs. The baronial castles which

then multiplied so rapidly became mere dens of robbers who ransacked

the country for all who had the unfortunate reputation of wealth. From

these they extracted the last penny by tortures; and the chronicler

expatiates on the multiplicity and horrid ingenuity of the torments

devised—suspension by the feet over slow fires; hanging by the thumbs;

knotted ropes twisted around the head; crucet-houses, or chests filled

with sharp stones, in which the victim was crushed; sachentages, or

frames with a sharp iron collar preventing the wearer from sitting,

lying, or sleeping; dungeons filled with toads and adders; slow

starvation, &c. &c.[1526] Even in the more settled times of the close

of the reign of Henry II. a case is recorded of a heavy fine inflicted

on a man for illegally capturing and torturing a woman;[1527] under

Richard I. an epistle of Clement III. refers to a knight who had

confessed that he had tortured a priest and forced him to redeem

himself with a large sum of money;[1528] and in 1210 King John

seized all the Jews in England and tortured them until they ransomed

themselves heavily.[1529]

In all this, however, there is no evidence of the revival of torture

as a means of legal investigation. The community was satisfied with

the old barbaric forms of trial, and the Church, still true to its

humanizing instincts, lost no opportunity of placing the seal of its

disapprobation on the whole theory of extorting confessions. At an

early period, it had even been a matter of dispute whether a Christian

magistrate, after baptism, was at liberty to inflict torment and

pronounce sentence of death. The Synod of Rome in 384 had declared

that no Christian could exercise secular power without sin, because he

was obliged to contravene the teachings of the Church by ordering the

application of torture in judicial pleadings;[1530] and if Innocent I.,

in 405, had decided that such proceedings were lawful, it was only on

the ground that the Church had no right to resist the laws or to oppose

the powers ordained of God.[1531] About the same time St. Augustin

had exposed the cruel absurdity of torture with a cogent terseness

that has rarely been excelled, and had stamped it with the infamy

which it deserved.[1532] The great name of Gregory I. was on record in

the sixth century, denouncing as worthless a confession extorted by

incarceration and hunger.[1533] When Nicholas I., who did so much to

build up ecclesiastical power and influence, addressed, in 866, his

well-known epistle to the Bulgarians to aid and direct them in their

conversion to orthodoxy, he recites that he is told that, in cases of

suspected theft, their courts endeavor to extort confession by stripes,

and by pricking with a pointed iron. This he pronounces to be contrary

to all law, human and divine, for confessions to be valid should be

spontaneous; and he argues at some length on the uncertainty of the

system of torture, and the injustice to which it leads, concluding with

a peremptory prohibition of its continuance.[1534]

In the first half of the same century, the manufacturers of the False

Decretals had attributed to Alexander I. an epistle designed to

protect the Church from pillage and oppression, in which that pontiff

is made to threaten with infamy and excommunication those who extort

confessions or other writings from ecclesiastics by force or fear, and

to lay down the general rule that confessions must be voluntary and not

compulsory.[1535] On the authority of this, Ivo of Chartres, at the

commencement of the twelfth century, declares that men in holy orders

cannot be forced to confess;[1536] and half a century later, Gratian

lays down the more general as well as more explicit rule that no

confession is to be extorted by the instrumentality of torture.[1537]

This position was consistently maintained until the revival of the

Roman law familiarized the minds of men with the procedures of the

imperial jurisprudence, when the policy of the Church altered, and it

yielded to the temptation of obtaining so useful a means of reaching

and proving the otherwise impalpable crime of heresy.

CHAPTER VI.

REAPPEARANCE OF TORTURE.

The latter half of the twelfth century saw the study of the civil law

prosecuted with intense ardor, and, in the beginning of the thirteenth,

Innocent III. struck a fatal blow at the barbaric systems of the ordeal

and sacramental compurgation by forbidding the rites of the Church

to the one and altering the form of oath customary to the other. The

unreasoning faith which had reposed confidence in the boiling caldron,

or the burning ploughshare, or the trained champion as the special

vehicle of Divine judgment, was fading before the Aristotelian logic

of the schools, and dialectical skill could not but note the absurdity

of acquitting a culprit because he could beg or buy two, or five, or

eleven men to swear to their belief in his oath or denial.

Yet with all these influences at work, the ancestral customs maintained

their ground long and stubbornly. It is not until the latter half of

the thirteenth century that the first faint traces of legalized torture

are to be found in France, at whose University of Paris for more than

a hundred years the study of the Pandects had become the absorbing

topic, and where the constantly increasing power of the crown found

its most valuable instruments in the civil lawyers, and its surest

weapon against feudalism in the extension of the royal jurisdiction.

In Germany, the progress was even slower. The decline of the central

authority, after the death of Frederic Barbarossa, rendered any

general change impossible, and made the absolutist principles of the

imperial jurisprudence especially distasteful to the crowd of feudal

sovereigns, whose privileges were best supported by perpetuating

organized anarchy. The early codes, therefore, the Sachsenspiegel, the

Schwabenspiegel, the Kayser-Recht, and the Richstich Landrecht, which

embodied the judicial proceedings of the Teutonic nations from the

thirteenth to the fifteenth centuries, seem to know no other mode of

deciding doubtful questions than sacramental purgation and the various

forms of ordeal. During the latter portion of this period, it is true,

torture begins to appear, but it is an innovation.[1538]

The first indications of the modern use of torture show distinctly

that its origin is derived from the civil law. In the Latin Kingdoms

of the East, the Teutonic races were brought into contact with the

remains of the old civilization, impressive even in its decrepitude.

It was natural that, in governing the motley collection of Greeks,

Syrians, and Franks, for whom they had to legislate, they should adopt

some of the institutions which they found in force amid their new

possessions, and it is only surprising that torture did not form a

more prominent feature in their code. The earliest extant text of the

_Assises de Jerusalem_ is not older than the thirteenth century, and

the blundering and hesitating way in which it recognizes, in a single

instance, the use of torture shows how novel was the idea of such

procedure to the feudal barons, and how little they understood the

principles governing its application. When a murderer was caught in the

act by two witnesses, he could be promptly hanged on their testimony,

if they were strangers to the victim. If, however, they were relatives,

their testimony was held suspect, and the confession of the accused

was requisite to his conviction. To obtain this, he was subjected to

torture for three days; if he confessed, he was hanged; if obdurate,

he was imprisoned for a year and a day, with the privilege of clearing

himself during that period by the ordeal of the red-hot iron. If he

declined this, and if during his confinement no additional evidence was

procured, he was acquitted, and could not be again appealed for the

murder.[1539]

This show’s the transition state of the question. The criminal is

caught with the red hand and the evidence of guilt is complete,

save that the witnesses may be interested; confession thus becomes

requisite, yet the failure to extort it by prolonged torment does not

clear the accused; the ordeal is resorted to in order to supplement

the torture, and solve the doubts which the latter could not remove;

and finally, the criminal is absolved, though he dare not trust the

judgment of God, and though the uncertainties in which torture had left

the case are not removed.

Italy was the centre from which radiated the influences of the Roman

law throughout Western Europe, and, as might be expected, it is to

Italy that we must look for the earliest incorporation of torture in

the procedures of modern criminal jurisprudence. The Veronese laws

in force in 1228 already show a mixture of proceedings suggestive,

like the Assises de Jerusalem, of the impending change. In doubtful

cases, the podestà was empowered to ascertain the truth of testimony

by either inquest, torture, or the duel.[1540] This shows that the

employment of torture was by this time recognized to some extent,

though as the code is a very full one and this is the only allusion

to it, it evidently had not yet grown into one of the regular legal

processes. So in the legislation of Frederic II. for his Neapolitan

provinces, promulgated in 1231, the mode in which it is prescribed

shows that it was as yet but sparingly employed. As Frederic was one of

the earliest secular legislators who discountenanced and restricted the

various forms of the ordeal, it was natural that, with his education

and temperament, he should seek to replace them with the system of the

Roman codes which he so much admired.

When a secret murder or other heinous crime was committed, and the

most stringent investigation could not convict the perpetrators, if

the weight of suspicion fell on persons of humble station and little

consequence, they could be tortured for confession. If no torment could

wring from them an acknowledgment of guilt, or if, as often happened

(“prout accidere novimus in plerisque”), their resolution gave way

under insufferable torment and they subsequently recanted, then the

punishment, in the shape of a fine, was inflicted on the district where

the crime had occurred.[1541] From this it is evident that torture was

not exactly a novelty, but that as yet it was only ventured upon with

the lowest and most unprotected class of society, and that confession

during its infliction was not regarded as sufficient for conviction,

unless subsequently ratified.

During the remainder of the century, the statutes of many of the

Italian cities show the gradual introduction of torture to replace

the barbarian processes which were not indigenous,[1542] and which

the traditional hate of the Italian States for the Tedeschi was not

likely to render popular. That by the middle of the century, indeed,

the practical applications of torture had been profoundly studied and

were thoroughly understood in all their most inhuman ramifications is

sufficiently evident from the accounts which we possess of the fearful

cruelties habitually practised by petty despots such as Eccelino da

Romano.[1543]

The manner in which the use of torture thus in time was superimposed

upon the existing customs of Europe is clearly shown in the law of

Lubeck. The mercantile law of the Middle Ages disregarded, as we have

seen, all the irregular forms of evidence, such as the ordeal, the

judicial duel, &c., and it naturally was not favorable to torture. As

the chief of the Hanse-towns Lubeck, therefore, in its legislation

preserved the principles of the mercantile law, but in time these came

to be expounded by a race of lawyers imbued with the ideas of the

imperial jurisprudence, and little was left of the primitive simplicity

of the original code. Thus the latter, when treating of adultery,

simply provides that the accused must clear himself by oath, or be held

guilty of the charge; but a commentary on it, written in 1664, assumes

that as the crime is a peculiarly secret one recourse must be at once

had to torture where there is colorable ground for suspicion.[1544]

About this time we also find, in the increasing rigor and gradual

systematizing of the Inquisition, an evidence of the growing

disposition to resort to torture, and a powerful element in extending

and facilitating its introduction. The Church had been actively

engaged in discountenancing and extirpating the ordeal, and it now

threw the immense weight of its authority in favor of the new process

of extorting confessions. When Frederic II., from 1220 to 1239,

published his three constitutions directed against heresy, cruel and

unsparing as they were, they contained no indication that torture

was even contemplated as a mode of investigation. In conformity with

the provisions of the Lateran Council of 1215, parties suspected on

insufficient evidence were directed to prove their innocence by some

fitting mode of purgation, and the same instructions were given by

Gregory IX. in 1235.[1545] In 1252, however, when Innocent IV. issued

his elaborate directions for the guidance of the Inquisition in Tuscany

and Lombardy, he ordered the civil magistrates to extort from all

heretics by torture not merely a confession of their own guilt, but

an accusation of all who might be their accomplices; and this derives

additional significance from his reference to similar proceedings as

customary in trials of thieves and robbers.[1546] It shows the progress

made during the quarter of the century and the high appreciation

entertained by the Church for the convenience of the new system.

At first the canons of the Church, which prohibited ecclesiastics from

being concerned in such matters, or even from being present, under pain

of “irregularity,” rendered it necessary for inquisitors to call in the

secular executioners; but this interfered with promptness and secrecy,

and the difficulty was removed with characteristic indirection. A

series of papal bulls from 1256 to 1266 authorized inquisitors and

their assistants to grant mutual absolution and dispensation for

irregularities,[1547] and thus they were able to take the business of

inflicting torture into their own hands—an opportunity of which they

availed themselves fully.

As yet, however, this did not extend beyond Italy. There is extant

a tract, written not long after this time, containing very minute

instructions as to the established mode of dealing with the Waldensian

sectaries known as the “Poor Men of Lyons.” It gives directions to

break down their strength and overcome their fortitude by solitary

confinement, starvation, and terror, but it abstains from recommending

the infliction of absolute and direct torture, while its details are

so full that the omission is fair negative evidence that such measures

were not then customary.[1548]

The whole system of the Inquisition, however, was such as to render

the resort to torture inevitable. Its proceedings were secret; the

prisoner was carefully kept in ignorance of the exact charges against

him, and of the evidence upon which they were based. He was presumed

to be guilty, and his judges bent all their energies to force him to

confess. To accomplish this, no means were too base or too cruel.

According to the tract just quoted, pretended sympathizers were to be

let into his dungeon, whose affected friendship might entrap him into

an unwary admission; officials armed with fictitious evidence were

directed to frighten him with assertions of the testimony obtained

against him from supposititious witnesses; and no resources of fraud or

guile were to be spared in overcoming the caution and resolution of the

poor wretch whose mind, as we have seen, had been carefully weakened

by solitude, suffering, hunger, and terror. From this to the rack and

estrapade the step was easily taken, and was not long delayed. In

1301, we find even Philippe le Bel protesting against the cruelty of

Fulk, the Dominican Inquisitor, and interfering to protect his subjects

from the refinements of torture to which, on simple suspicion of

heresy, unfortunate victims were habitually exposed.[1549] Yet when,

a few years later, the same monarch resolved upon the destruction of

the Templars, he made the Inquisition the facile instrument to which

he resorted, as a matter of course, to extort from De Molay and his

knights, with endless repetition of torments, the confessions from

which he hoped to recruit his exhausted treasury with their broad lands

and accumulated riches.[1550]

The history of the Inquisition, however, is too large a subject to

be treated here in detail, and it can only be alluded to for the

purpose of indicating its influence upon secular law. That influence

was immense. The legists who were endeavoring to eradicate the feudal

customs could not expect the community to share their admiration of

the Roman law, and naturally grasped with eagerness the advantage

offered them in adducing the example of ecclesiastical institutions.

In founding their new system they could thus hardly avoid copying that

which presented itself under all the authority of an infallible Church,

and which had been found to work so successfully in unveiling the

most secret of hidden crimes, those of faith and belief.[1551] When,

therefore, men were taught that in these cases the ordinary forms and

safeguards of the law were not to stand in the way of the public good,

a principle was enunciated capable of illimitable development.

About the time when Innocent IV. was prescribing torture in Italy,

we find the first evidence of its authoritative use in France as an

ordinary legal procedure. In December, 1254, an assembly of the nobles

of the realm at Paris adopted an ordonnance regulating many points

in the administration of justice. Among these occurs an order that

persons of good reputation, even though poor, shall not be put to the

torture on the evidence of one witness, lest, on the one hand, they

may be forced to convict themselves falsely, or, on the other, to buy

themselves off from the infliction.[1552]

This would seem to indicate that the system of judicial torture was so

completely established that its evils and abuses had begun to render

themselves apparent and to require restrictive legislation. Yet the

contemporaneous remains of jurisprudence show no trace of the custom,

and some of them are of a nature to render their silence a negative

proof of no little weight. To this period, for instance, belongs the

earliest extant coutumier of Normandy, published by Ludewig, and it

contains no allusion to torture. The same may be said of the _For

de Béarn_, granted in 1288, and recently printed by MM. Mazure and

Hatoulet, which is very full in its details of judicial procedure. The

collection of the laws of St. Louis, known as the _Établissements_,

is likewise free from any instructions or directions as to its

application, though it could scarcely have been omitted had it formed

part of the admitted jurisprudence of the age. It may be argued,

indeed, that these codes and laws assume the existence of torture, and

therefore make no reference to it, but such an argument would not hold

good with respect to the books of practice which shrewd and experienced

lawyers commenced at that time to draw up for the guidance of courts

in the unsettled period of conflict between the ancient feudal customs

and the invading civil law. For instance, no text-book can well be more

minute than the _Livres de Jostice et de Plet_, written about the year

1260, by a lawyer of the school of Orleans, then celebrated as the

headquarters of the study of the imperial jurisprudence. He manifests

upon almost every page his familiar acquaintance with the civil and

canon law, and he could not possibly have avoided some reference to

torture if it had been even an occasional resource in the tribunals in

which he pleaded, and yet he does not in any way allude to it.

The same conclusion is derivable from the _Coutumes du Beauvoisis_,

written about 1270 by Philippe de Beaumanoir. In his position as royal

bailli, Beaumanoir had obtained the fullest possible familiarity with

all the practical secular jurisprudence of his day, and his tendencies

were naturally in favor of the new system with which St. Louis was

endeavoring to break down the feudal customs. Yet, while he details

at much length every step in all the cases, civil and criminal, that

could be brought into Court, he makes no allusion to torture as a

means of obtaining evidence. In one passage, it is true, he seems

to indicate that a prisoner could be forced, while in prison, to

criminate himself, but the terms employed prove clearly that this

was not intended to include the administration of torment.[1553] In

another place, moreover, when treating of robberies, he directs that

all suspected parties should be long and closely confined, but that,

if they cannot be convicted by external evidence, they must at last be

discharged.[1554] All this is clearly incompatible with the theory of

torture.

The _Conseil_ of Pierre de Fontaines, which was probably written

about the year 1260, affords the same negative evidence in its full

instructions for all the legal proceedings then in use. In these three

works, notwithstanding the reforms attempted by St. Louis, the legist

seems to imagine no other solution than the wager of battle for the

settlement of doubtful cases, wherein testimony is insufficient. The

form of trial is still public, in the feudal or royal courts, and

every opportunity is given both for the attack and the defence. The

work of de Fontaines, moreover, happens to furnish another proof that

he wrote at the commencement of a transition period, during which

the use of torture was introduced. In the oldest MSS. of his work,

which are considered to date from 1260 to 1280, there is a passage to

the effect that a man convicted of crime may appeal, if he has not

confessed, or, when he has confessed, if it has been in consequence

of some understanding (_covent_). In later MSS., transcribed in the

early part of the fourteenth century, the word “covent” is replaced

by “tourmenz,”[1555] thus showing not only the introduction of torture

during the interval, but also that a conviction obtained by it was not

final.

The Ordonnance of 1254, indeed, as far as it relates to torture,

is asserted by modern criticism to have been applicable only to

Languedoc.[1556] If so, its importance is reduced to a minimum, for

in the document as registered in the council of Béziers in 1255, the

section respecting torture is omitted,[1557] and this would seem to

show that even in the south, where the traditions of the Roman law

were continuous, torture was still regarded as an innovation not to

be legally sanctioned. Still it was gradually winning its way against

popular repugnance, for we have in 1260 a charter from Alphonse de

Poitiers to the town of Auzon (Auvergne), in which he grants exemption

from torture in all trials irrespective of the gravity of the

crime.[1558]

While giving due weight, however, to all this, we must not lose

sight of the fact that the laws and regulations prescribed in royal

ordonnances and legal text-books were practically applicable only to

a portion of the population. All non-nobles, who had not succeeded in

extorting special privileges by charter from their feudal superiors,

were exposed to the caprices of barbarous and irresponsible power.

It was a maxim of feudal law that God alone could intervene between

the lord and his villein—“Mès par notre usage n’a-il, entre toi et

ton vilein, juge fors Deu”[1559]—the villein being by no means

necessarily a serf; and another rule prohibited absolutely the villein

from appealing from the judgment of his lord.[1560] Outside of law,

and unauthorized by coutumiers and ordonnances, there must, under such

institutions, have been habitually vast numbers of cases in which the

impatient temper of the lord would seek a solution of doubtful matters,

in the potent cogency of the rack or scourge, rather than waste

time or dignity in endeavoring to cross-question the truth out of a

quick-witted criminal.

Still, as an admitted legal procedure, the introduction of torture was

very gradual. The _Olim_, or register of cases decided by the Parlement

of Paris, extends, with some intervals, from 1255 to 1318, and the

paucity of affairs recorded in which torture was used shows that it

could not have been habitually resorted to during this period. The

first instance, indeed, only occurs in 1283, when the Bishop of Amiens

complains of the bailli of that town for having tried and tortured

three clerks in defiance of the benefit of clergy which entitled them

to exemption from secular jurisdiction. The bailli pleaded ignorance

of their ecclesiastical character, and his plea was admitted as

sufficient.[1561] The next instance of the use of torture is found in

1299, when the royal bailli of Senlis cites the mayor and jurats of

that town before the Parlement, because in a case of theft they had

applied the question to a suspected criminal; and although theft was

within their competence, the bailli argued that torture was an incident

of “haute justice” which the town did not possess. The decision was in

favor of the municipality.[1562] The next year (1300) we find a clerk,

wearing habit and tonsure, complaining that the royal officials of

the town of Villeneuve in Rouergue had tortured him in divers ways,

with ropes and heavy weights, heated eggs and fire, so that he was

crippled, and had been forced to expend three hundred livres Tournois

in medicines and physicians. This, with other proper damages, he prays

may be made good to him by the perpetrators, and the arrêt of the

Parlement orders their persons and property to be seized, and their

possessions valued, in order that the amount may be properly assessed

among them.[1563] Philippe le Bel, notwithstanding his mortal quarrel

with the papacy—or perhaps in consequence of it—was ever careful of

the rights and privileges of the clergy, among which the immunity from

secular jurisdiction and consequently from torture was prominent. The

case evidently turned upon that point.

The fourth case does not present itself until 1306. Two Jews, under

accusation of larceny by their brethren, complain that they had been

illegally tortured by the bailli of Bourges, and though one of them

under the infliction had confessed to complicity, the confession is

retracted and damages of three thousand livres Tournois are demanded.

On the other hand, the bailli maintains that his proceedings are

legal, and asks to have the complainants punished in accordance with

the confession. The Parlement adopts a middle course; it acquits the

Jews and awards no damages, showing that the torture was legal and a

retracted confession valueless.[1564]

The fifth case, which occurs in 1307, is interesting as having for its

reporter no less a personage than Guillaume de Nogaret, the captor of

Boniface VIII. A certain Guillot de Ferrières, on a charge of robbery,

had been tried by the judge of Villelongue and Nicolas Bourges, royal

chatelain of Mont-Ogier. The latter had tortured him repeatedly and

cruelly, so that he was permanently crippled, and his uncle, Étienne

de Ferrières, Chatelain of Montauban, claims damages. The decision

condemns Nicolas Bourges in a mulct of one thousand livres Tournois,

half to Guillot for his sufferings and half to Étienne for his

expenses, besides a fine to the crown.[1565] It is evident that judges

were not allowed to inflict unlimited torment at their pleasure.

The sixth case, occurring in 1310, may be passed over, as the torture

was not judicial, but merely a brutal outrage by a knight on a noble

damsel who resisted his importunities: though it may be mentioned that

of the fine inflicted on him, fifteen hundred livres Tournois enured to

the crown and only one hundred to the victim.[1566]

The seventh case took place in 1312, when Michael de Poolay, accused of

stealing a sum of money from Nicolas Loquetier, of Rouen, was subjected

to a long imprisonment and torture at Château-Neuf de Lincourt, and

was then brought to the Châtelet at Paris, where he was again examined

without confession or conviction. Meanwhile, the real criminal

confessed the theft, and Nicolas applies to the Parlement for the

liberation of Michael, which is duly granted.[1567]

A long interval then occurs, and we do not hear of torture again until

1318, when Guillaume Nivard, a money-changer of Paris, was accused of

coining, and was tortured by the Prevôt of the Châtelet. He contends

that it was illegal, while the Prevôt asserts that his jurisdiction

empowered him to administer it. The Parlement investigates the case,

and acquits the prisoner, but awards him no damages.[1568]

The essentially common-place and trivial character of these cases has

its interest in showing that the practice of appealing to the Parlement

was not confined to weighty matters, and therefore that the few

instances in which torture was involved in such appeals afford a fair

index of the rarity of its use during this period. These cases, too,

have seemed to me worth reciting, as they illustrate the principles

upon which its application was based in the new jurisprudence, and

the tentative and uncertain character of the progress by which the

primitive customs of the European races were gradually becoming

supplanted by the resuscitated Roman law.

A few instances, moreover, are on record in which torture was used in

affairs of state. Thus in 1304 we find Charles of Valois torturing a

Flemish beguine who was accused of an attempt to poison him. The mode

adopted was the application of fire to the soles of the victim’s feet,

and though she was said to have confessed, still he liberated her after

a short imprisonment.[1569] In the frightful scandal, also, of the

daughters-in-law of Philippe le Bel, which occurred in 1314, though

torture does not seem to have been used in examining the principals,

either the princesses or their paramours, it was freely employed upon

the numerous persons who were accused as accessories.[1570] In 1315,

during the long trial of Enguerrand de Marigny, sacrificed after the

death of Philippe le Bel to the hatred of Charles of Valois, torture

was freely used to obtain evidence from his dependents;[1571] and in

the same year Raoul de Presles, accused of the death of the late king,

was exposed to torture without obtaining a confession, and was finally

liberated.[1572]

This undermining of the ancient customs had not been allowed to

continue uninterrupted by protest and resistance. In the closing days

of the reign of Philippe le Bel the feudal powers of France awoke to

the danger with which they were menaced by the extension of the royal

prerogative during the preceding half-century. A league was formed

which seemed to threaten the existence of the institutions so carefully

nurtured by St. Louis and his successors. It was too late, however, and

though the storm broke on the new and untried royalty of Louis Hutin,

the crown lawyers were already too powerful for the united seigneurie

of the kingdom. When the various provinces presented their complaints

and their demands for the restoration of the old order of things, they

were met with a little skilful evasion, a few artful promises, some

concessions which were readily withdrawn, and negatives carefully

couched in language which seemed to imply assent.

Among the complaints we find the introduction of torture enumerated

as an innovation upon the established rights of the subject, but the

lawyers who drew up the replies of the king took care to infringe as

little as they could upon a system which their legal training led

them to regard as an immense improvement in procedure, especially as

it enabled them to supersede the wager of battle, which they justly

regarded as the most significant emblem of feudal independence.

The movement of the nobles resulted in obtaining from the king a series

of charters for the several provinces, by which he defined, as vaguely,

indeed, as he could, the extent of royal jurisdiction claimed, and in

which he promised to relieve them from certain grievances. In some of

these charters, as in those granted to Britanny, to Burgundy, and to

Amiens and Vermandois, there is no allusion made to torture.[1573]

In the two latter, the right to the wager of battle is conceded,

which may explain why the nobles of those provinces were careless to

protect themselves from a process which they could so easily avoid by

an appeal to the sword. In the charter of Languedoc, all that Louis

would consent to grant was a special exemption to those who had enjoyed

the dignity of capitoul, consul, or decurion of Toulouse and to their

children, and even this trifling concession did not hold good in cases

of _lèse-majesté_ or other matters particularly provided for by law;

the whole clause, indeed, is borrowed from the Roman law, which may

have reconciled Louis’s legal advisers to it, more especially as, for

the first time in French jurisprudence, it recognized the crime of

_lèse-majesté_, which marked the triumph of the civil over the feudal

law.[1574] Normandy only obtained a vague promise that no freeman

should be subjected to torture unless he were the object of violent

presumptions in a capital offence, and that the torture should be so

regulated as not to imperil life or limb; and though the Normans were

dissatisfied with this charter, and succeeded in getting a second one

some months later, they gained nothing on this point.[1575]

The official documents concerning Champagne have been preserved to

us more in detail. The nobles of that province complained that the

royal prevôts and serjeants entered upon their lands to arrest their

men and private persons, whom they then tortured in defiance of their

customs and privileges (“contre leurs coustumes et libertez”). To this

Louis promised to put an end. The nobles further alleged that, in

contravention of the ancient usages and customs of Champagne (“contre

les us et coustumes enciens de Champagne”), the royal officers presumed

to torture nobles on suspicion of crime, even though not caught in the

act, and without confession. To this Louis vaguely replied that for the

future no nobles should be tortured, except under such presumptions

as might render it proper, in law and reason, to prevent crime from

remaining unpunished; and that no one should be convicted unless

confession was persevered in for a sufficient time after torture.[1576]

This, of course, was anything but satisfactory, and the Champenois were

not disposed to accept it; but all that they could obtain after another

remonstrance was a simple repetition of the promise that no nobles

should be tortured except under capital accusations.[1577] The struggle

apparently continued, for, in 1319, we find Philippe le Long, in a

charter granted to Périgord and Quercy, promising that the proceedings

preliminary to torture should be had in the presence of both parties,

doubtless to silence complaints as to the secret character which

criminal investigations were assuming.[1578]

The use of torture was thus permanently established in the judicial

machinery of France as one of the incidents in the great revolution

which destroyed the feudal power. Even yet, however, it was not

universal, especially where communes had the ability to preserve their

franchises. Count Beugnot has published, as an appendix to the _Olim_,

a collection known as the _Tout Lieu de St. Disier_, consisting of

314 decisions of doubtful cases referred by the magistrates of St.

Dizier to the city of Ypres for solution, as they were bound to do by

their charter. This especially directed that all cases not therein

provided for should be decided according to the customs of Ypres, and

consequently, for two hundred and fifty years, whenever the eschevins

of the little town in Champagne felt in doubt they referred the matter

to the lordly burghers of Flanders as to a court of last resort. In

the _Tout Lieu_ the cases date mostly from the middle third of the

fourteenth century, and were selected as a series of established

precedents. The fact that, throughout the whole series, torture is not

alluded to in a single instance shows that it was a form of procedure

unknown to the court of the eschevins of St. Dizier, and even to the

superior jurisdiction of the bailli of their suzerain, the Seigneur

of Dampierre. Many of these cases seem peculiarly adapted to the new

inquisitorial system. Thus, in 1335, a man was attacked and wounded in

the street at night. A crowd collected at his cries, and he named the

assailant. No rule was more firmly established than the necessity of

two impartial witnesses to justify condemnation, and the authorities

of St. Dizier, not knowing what course to take, applied as usual for

instructions to the magistrates of Ypres. The latter defined the law

to be that the court should visit the wounded man on his sick-bed and

adjure him by his salvation to tell the truth. If on this he named any

one and subsequently died, the accused should be pronounced guilty; if,

on the other hand, he recovered, then the accused should be treated

according to his reputation: that is, if of good fame, he should be

acquitted; if of evil repute, he should be banished.[1579] No case more

inviting under the theory of torture could well be imagined, and yet

neither the honest burghers of St. Dizier nor the powerful magnates of

Ypres seem to have entertained the idea of its application. So, again,

when the former inquire what proof is sufficient when a man accuses

another of stealing, the answer is that no evidence will convict,

unless the goods alleged to be stolen are found in the possession of

the accused.[1580] The wealthy city of Lille equally rejected the

process of torture. The laws in force there, about the year 1350,

prescribe that in cases of homicide conviction ought to be based upon

absolute evidence, but where this is unattainable then the judges are

allowed to decide on mere opinion and belief, for uncertain matters

cannot be rendered certain.[1581] In such a scheme of legislation, the

extortion of a confession as a condition precedent to condemnation can

evidently find no place.

Attempts to introduce torture in Aquitaine were apparently made,

but they seem to have been resisted. In the Coutumier of Bordeaux,

during the fourteenth century there is a significant declaration that

the sages of old did not wish to deprive men of their liberties and

privileges. Torture, therefore, was prohibited in the case of all

citizens except those of evil repute and declared to be infamous.

The nearest approach to it that was permitted was tying the hands

behind the back, without using pulleys to lift the accused from the

ground.[1582]

By this time, however, places where torture was not used were

exceptional. An allusion to it in 1335 in the register of the court

of the Priory of St. Martin-des-Champs shows that already it was not

confined to the royal jurisdiction, but that it was recognized as an

incident to the possession of haute justice.[1583] By a document of

1359, it appears that it was the custom to torture all malefactors

brought to the Châtelet of Paris,[1584] and though privileged persons

constantly endeavored to exempt themselves from it, as the consuls of

Villeneuve in 1371,[1585] and the Seigneur d’Argenton in 1385,[1586]

other privileged persons as constantly sought to obtain the power of

inflicting it, as shown in the charter of Milhaud, granted in 1369,

wherein the consuls of that town are honored with the special grace

that no torture shall be administered except in their presence, if they

desire to attend.[1587] At the end of the century, indeed, the right to

administer torture in cases wherein the accused denied the charge was

regularly established among the privileges of haute justiciers.[1588]

By this time criminal procedures were fully recognized as

divisible into two classes—the _procès ordinaire_ and the _procès

extraordinaire_. The former of these was carried on by the form of

inquest, the latter by inquisition, in which torture was habitually

employed. There were no definite rules to determine the class to which

any given case might be referred, and though at the beginning of the

fourteenth century the _procès ordinaire_, as its name infers, was the

usual mode of trying criminals, gradually the choice between the two

was left to the discretion of the judge, and this discretion leaned so

constantly in favor of the _procès extraordinaire_ that by the close of

the century it had become the rule rather than the exception.[1589]

This is very clearly shown by the records of the Châtelet of Paris

from 1389 to 1392,[1590] which enable us to form a tolerably distinct

idea of the part assigned to torture in the criminal procedure of this

period. It had virtually become the main reliance of the tribunal, for

the cases in which it was not employed appear to be simply exceptional.

Noble blood afforded no exemption, for gentlemen were placed on the

rack for petty crimes as freely as roturiers.[1591] No avenue of escape

was open to the miserable culprit. If he denied the alleged offence,

he was tortured at once for a confession, and no settled rules seem

to have existed as to the amount of evidence requisite to justify it.

Thus, in one case, a man on the _tresteau_ relating the misdeeds of

his evil life chanced to mention the name of another as a professional

thief. The latter was immediately arrested, and though there was

no specific crime charged against him, he was tortured repeatedly

until sufficient confession was extracted from him to justify his

execution.[1592] If, on the other hand, the prisoner persistently

denied his guilt there was no limit to the repetition of the torture,

and yet, even when no confession could be thus extracted, the failure

did not always serve to exempt him from punishment.[1593] If he

retracted the confession extorted from him, he was tortured again and

again until he ceased to assert his innocence, for it was a positive

necessity for conviction that the confession under torture should be

confirmed by the prisoner without constraint—“sans aucune force, paour

ou contrainte de gehayne”—when sentence came to be passed upon him

outside of the torture-chamber.

If, again, the luckless prisoner confessed the crime of which he stood

accused, he was further promptly tortured to find out what other

offences he might at some previous time have committed. This, which we

will see hereafter, continued to be to the end one of the worst abuses

of the torture system, was already a practice at least half a century

old,[1594] and it had become so habitual that it is scarcely worth

while to cite particular examples, though the case of Gervaise Caussois

may be briefly referred to on account of its quaintness. Arrested for

stealing some iron tools, he promptly confessed the crime. Among the

reasons on record for proceeding to torture him in order to elicit an

account of his other presumed misdemeanors, is included the excellent

one, “attendu qu’il est scabieux.” Under the torment the poor wretch

accused himself of some other petty thefts, but even this did not

satisfy his examiners, for the next day he was again brought before

them and bound to the _tresteau_, when he confessed a few more trifling

larcenies. Having apparently thus obtained enough evidence to satisfy

their consciences, his judges mercifully hanged him without further

infliction.[1595] In fact, the whole matter apparently was left very

much to the discretion of the court, which seems to have been bound by

no troublesome limitations to its curiosity in investigating the past

career of the miserable beings brought before it.

How that discretion was habitually exercised may be judged from the

case of a certain Fleurant de Saint-Leu, who was brought up for

examination Jan. 4, 1390, on the charge of stealing a silver buckle.

Denying the accusation, he was twice tortured with increasing severity,

until he confessed the alleged crime, but asserted it to be a first

offence. On Jan. 8th the court decided that as the petty theft was

insufficient to merit death, he should be tortured repeatedly to

ascertain whether he had not been guilty of something else worthy of

capital punishment. On that day he was therefore thrice exposed to

the question, in an ascending scale of severity, but without success.

On the 13th he was again twice tortured, when the only admission that

rewarded the examiners was that three years before he had married a

prostitute at Senlis. This uncommon obduracy seems to have staggered

the court, for he was then kept in his dungeon until April 9th, when

his case was carefully considered, and though nothing had been extorted

from him since his first confession, he was condemned, and was hanged

the same day—thus proving how purely gratuitous were the fearful

sufferings to which he had been exposed in order to gratify the

curiosity or satisfy the consciences of his remorseless judges.[1596]

Few criminals, however, gave so much trouble as Fleurant. The “petit et

grand tresteaux,” on which the torture was customarily administered,

were a sword which cut many a Gordian knot, and, by rendering the

justice of the Châtelet sharp and speedy, saved the court a world of

trouble. It was by no means unusual for the accused to be arraigned,

tortured, condemned, and executed all on the same day,[1597] and not a

few of the confessions read as though they were fictions composed by

the accused in order to escape by death from the interminable suffering

to which they were exposed. The sameness frequently visible in a long

catalogue of crimes seems to indicate this, but it is especially

notable in some singular cases of parties accused of poisoning wells

throughout the north of France, when there was an evident necessity

for the authorities to satisfy the excited populace by procuring

them some victims, and the unfortunate wretches who were arrested on

suspicion were tortured until they were ready to accuse themselves of

anything.[1598] In one case, indeed, the prisoner stated that he had

known a person tortured at the Châtelet with such severity that he

died in the hands of his torturers, and for himself he declared, after

one or two inflictions, that he would confess whatever would relieve

him from a repetition of what he had endured.[1599]

Yet, with all this reckless disregard of the plainest principles of

justice, the torture process had not yet entirely obliterated the

memory of the old customary law. The prisoner was not, as we shall see

practised hereafter, kept in ignorance of the charges against him and

of the adverse testimony. The accusation was always made known to him,

and when witnesses were examined, the record is careful to specify that

it was done in his presence.[1600] The court deliberated in private,

but the prisoner was brought before it to receive condemnation either

to torture or to death. Facilities were likewise afforded him to

procure evidence in his favor, when the swift justice of the Châtelet

might allow him leisure for such defence, for his friends were allowed

to see him in prison during the intervals of his trial.[1601]

Thus, in the capital, the royal power, aided by the civil lawyers, was

fast encroaching upon all the liberties of the subject, but in the

provinces a more stubborn resistance was maintained. It was some little

time after the period under consideration that the ancient Coutumier

of Britanny was compiled, and in it we find the use of torture,

though fully established as a judicial expedient, yet subjected to

much greater restrictions. A prisoner, accused of a capital crime and

denying the charge, was liable to torture only if positive evidence

was unattainable, and then only if he had been under accusation within

the previous five years. Moreover, if he endured its application

three times without confession, he was discharged acquitted as one in

whose favor God would work a miracle[1602]—thus showing how torture

was assimilated in the popular mind to the ordeal which it had

supplanted. Such escape indeed might well be regarded as a miracle, for

the reckless barbarity of the age had little scruple in pushing the

administration of the question to the utmost rigor. About this same

time, the Council of Reims, in 1408, drew up a series of instructions

for the bishops of the province in visiting their dioceses; and among

the abuses enumerated for investigation was whether the judges were in

the habit of torturing prisoners to death on feast days.[1603] It was

not the cruelty, but the sacrilege to which the Church took exception.

* * * * *

Even in Germany, the citadel of feudalism, the progress of the new

ideas and the influence of the Roman law had spread to such an extent

that in the Golden Bull of Charles IV., in 1356, there is a provision

allowing the torture of slaves to incriminate their masters in cases

of sedition against any prince of the empire;[1604] and the form of

expression employed shows that this was an innovation. Liége, which

at that period formed part of the empire, furnishes us with a case in

1376 which shows not only that torture then was an habitual resource in

procedure, but also that it was applied as illogically there as we have

seen it in Paris. The young wife of a burgher named Gilles Surlet was

found one morning strangled in bed. The husband, as though conscious

of innocence, at once presented himself to the authorities asserting

with fearful oaths his ignorance of the crime. A servant girl of the

household was then arrested, and she, without torture, immediately

confessed that she had committed the murder; but the judges, not

satisfied with this, submitted her to the question, when she denied her

guilt with the most provoking constancy. Suspicion then grew against

the husband, and he was duly tortured without extorting a confession,

though at the same time he declared that the girl was innocent; and on

being taken back to his cell he strangled himself during the night.

The chronicler does not record what was the fate of the girl, but the

body of Gilles was treated as that of a murderer—it was dragged to the

place of execution and broken on the wheel, while the superstitious

did not fail to note that on this dreary transit it was accompanied

by a black hog, which refused to be driven away until the gallows was

reached.[1605]

In Corsica, at the same period, we find the use of torture fully

established, though subject to careful restrictions. In ordinary

cases, it could only be employed by authority of the governor, to

whom the judge desiring to use it transmitted all the facts of the

case; the governor then issued an order, at his pleasure, prescribing

the mode and degree to which it might be applied.[1606] In cases of

treason, however, these limitations were not observed, and the accused

was liable to its infliction as far and as often as might be found

requisite to effect a purpose.[1607]

The Italian communities seem to have still at this period preserved

some limitations on the application of torture. In Milan, in 1338,

it could be only employed in capital cases where there was evidence

or public repute; it could only be ordered by the lord of the city,

his vicar, the podestà, and the criminal judges, and even these were

heavily fined if they used it illegally or elsewhere than in the

accustomed torture-chamber; the abuse of torturing witnesses had

already been introduced, but the judge was warned that this could be

done only when the witness swore to having been personally present and

then varied in his testimony or gave false evidence. Torture, moreover,

could only be inflicted once unless new evidence supervened.[1608] In

the statutes of Mirandola, revised in 1386, it could not be employed in

cases which did not involve corporal punishment or a fine of at least

twenty-five lire; nor even then unless the podestà submitted all the

evidence to the accused and gave him a sufficient and definite term

in which to purge himself.[1609] In Piacenza, about the same period,

torture was guarded with even more careful restrictions. There is no

indication that witnesses were exposed to it. Every effort to obtain

testimony was to be exhausted, and the accused was to be afforded full

opportunities for defence before he could be subjected to it, and

then there must be sufficient indications of guilt, mere rumor being

inadequate to justify it. Moreover, except in cases of high treason,

theft, highway robbery, assassination, and arson, a single judge could

not order it, but the case had to be submitted to all the judges and

the podestà, who determined by a majority in secret ballot whether

it should be employed. If any of these formalities were omitted, the

confession extorted was invalid, and the judge was mulcted in a fine of

a hundred lire.[1610]

The peculiar character of Venetian civilization made torture almost a

necessity. The atmosphere of suspicion and secrecy which surrounded

every movement of that republican despotism, the mystery in which it

delighted to shroud itself, and the pitiless nature of its legislation

conspired to render torture an indispensable resource. How freely it

was administered, especially in political affairs, is well illustrated

in the statutes of the State Inquisition, where the merest suspicion

is sufficient to authorize its application. Thus, if a senatorial

secretary were observed to be more lavish in his expenditures than his

salary would appear to justify, he was at once suspected of being in

the pay of some foreign minister, and spies were ordered on his track.

If he were then simply found to be absent from his house at undue

hours, he was immediately to be seized and put to the torture. So, if

any one of the innumerable secret spies employed by the inquisitors

were insulted by being called a spy, the offender was arrested

and tortured to ascertain how he had guessed the character of the

emissary.[1611] Human life and human suffering were of little account

in the eyes of the cold and subtle spirits who moulded the policy of

the mistress of the Adriatic.

The rude mountaineers of the Valtelline preserved to a later date

their respect for the ancient guarantees of the law. In their statutes

as revised in 1548 torture is indeed permitted, but only in case

of persons accused of crimes involving the penalty of blood. In

accusations of less heinous offences and in matters concerning money,

it was strictly forbidden; and even in cases where it was allowed it

could not be employed without the assent of the central authority of

the territory. When proceedings were had by inquisition, moreover, all

the evidence was submitted to the accused, and a sufficient delay was

accorded to him in which to frame a defence before he could be ordered

to the torture. Thus were avoided the worst abuses to which the system

had been made subservient long before that time in all the surrounding

regions.[1612]

Other races adopted the new system with almost equal hesitation. Thus

in Hungary the first formal embodiment of torture in the law occurs in

1514, and though the terms employed show that it had been previously

used to some extent, yet the restrictions laid down manifest an extreme

jealousy of its abuse. Mere suspicion was not sufficient. To justify

its application, a degree of proof was requisite which was almost

competent for condemnation, and the nature of this evidence is well

exemplified in the direction that if a judge himself witnessed a

murder, he could not order the homicide to be tortured unless there was

other testimony sufficient, for he could not be both witness and judge,

and his knowledge of the crime belonged to his private and not to his

judicial capacity.[1613] With such refinements, there would seem to be

little danger of the extension of the custom.

In Poland, torture does not make its appearance until the fifteenth

century, and then it was introduced gradually, with strict

instructions to the tribunals to use the most careful discretion in

its administration.[1614] Until, at least, the seventeenth century,

there remained in force laws of Casimir the Great promulgated in

the fourteenth, prohibiting any prosecution not brought by a proper

accuser, in whose presence alone could the matter be heard, thus

showing that the inquisitorial process found no foothold in the Polish

courts.[1615] In Russia, the first formal allusion to it is to be found

in the Ulagenié Zakonof, a code promulgated in 1497, by Ivan III.,

which merely orders that persons accused of robbery, if of evil repute,

may be tortured to supply deficiencies of evidence; but as the duel

was still freely allowed to the accused, the use of torture must have

been merely incidental.[1616] From another source, dating about 1530,

we learn that it was customary to extort confessions from witches by

pouring upon them from a height a small stream of cold water; and in

cases of contumacious and stubborn criminals, the finger-nails were

wrenched off with little wooden wedges.[1617] Still, torture makes but

little show in the subsequent codes, such as the Sudebtnick, issued in

1550, and the Sobornoié Ulagenié, promulgated in 1648.[1618] In fact,

these regions were still too barbarous for so civilized a process.

In addition to these national jurisdictions there was a wide field

open to the use of torture in the spiritual courts established

everywhere, for it was not confined to the secular tribunals and to

the Inquisition. The latter had so fully familiarized the minds

of churchmen with it that it came to be employed generally in the

episcopal tribunals which, through their exclusive jurisdiction over

clerks and over all matters that could be connected with spiritual

offences, had considerable criminal business. We may assume, however,

that in this respect they were limited by the laws of the land and were

debarred from its use in countries where it was not allowed in secular

matters. In 1310 it required the most urgent pressure from Clement V.

to induce Edward II. to violate the common law by permitting the papal

emissaries to torture the English Templars, and the King sought to

conceal the illegality of the act by an order to the gaolers which bore

that the inquisitors and episcopal ordinaries should be allowed to deal

with the bodies of the prisoners “in accordance with ecclesiastical

law,”[1619] showing how completely in the minds of men torture was

identified with the spiritual courts. When the canons of the council

of Vienne were promulgated in 1317 and the inquisitor Bernard Gui

remonstrated with John XXII. against a clause intended to diminish the

abuse of torture by inquisitors, he argued that it was a reflection on

the Inquisition, because the episcopal courts were subject to no such

restrictions on its use.[1620] The Church carried this blessing with

it wherever it went. When in 1593 St. Toribio, Archbishop of Lima,

sought to reform the abuses of the episcopal courts throughout his

vast province, he issued an _arancel_ or tariff of fees for all their

officials. In this we find that the executioner was not to charge more

than a peso for torturing a prisoner, while the notary was entitled to

two reales for drawing up a sentence of torture, and one real for each

folio of his record of its administration and the confession of the

accused.[1621]

CHAPTER VII.

THE INQUISITORIAL PROCESS.

During this period, while Central and Western Europe had advanced with

such rapid strides of enlightenment, the inquisitorial process, based

upon torture, had become the groundwork of all criminal procedure,

and every detail was gradually elaborated with the most painstaking

perverseness.

Allusion has already been made to the influence of the Inquisition in

introducing the use of torture. Its influence did not cease there,

for with torture there gradually arose the denial to the accused

of all fair opportunity of defending himself, accompanied by the

system of secret procedure which formed so important a portion of the

inquisitorial practice. In the old feudal courts, the prosecutor and

the defendant appeared in person. Each produced his witnesses; the

case was argued on both sides, and unless the wager of battle or the

ordeal intervened, a verdict was given in accordance with the law

after duly weighing the evidence, while both parties were at liberty

to employ counsel and to appeal to the suzerain. When St. Louis

endeavored to abolish the duel and to substitute a system of inquests,

which were necessarily to some extent _ex parte_, he did not desire to

withdraw from the accused the legitimate means of defence, and in the

Ordonnance of 1254 he expressly instructs his officers not to imprison

the defendant without absolute necessity, while all the proceedings

of the inquest are to be communicated freely to him.[1622] All this

changed with time and the authoritative adoption of torture. The theory

of the Inquisition, that the suspected man was to be hunted down

and entrapped like a wild beast, that his guilt was to be assumed,

and that the efforts of his judges were to be directed solely to

obtaining against him sufficient evidence to warrant the extortion of a

confession without allowing him the means of defence—this theory became

the admitted basis of criminal jurisprudence. The secrecy of these

inquisitorial proceedings, moreover, deprived the accused of one of the

greatest safeguards accorded to him under the Roman law of torture.

That law, as we have seen, required the formality of inscription,

by which the accuser who failed to prove his charge was liable to

the _lex talionis_, and in crimes which involved torture in the

investigation he was duly tortured. This was imitated by the Wisigoths,

and its principle was admitted and enforced by the Church before the

introduction of the Inquisition had changed its policy;[1623] but

modern Europe, in borrowing from Rome the use of torture, combined it

with the inquisitorial process, and thus in civilized Christendom it

speedily came to be used more recklessly and cruelly than ever it had

been in pagan antiquity.

In 1498, an assembly of notables at Blois drew up an elaborate

ordonnance for the reformation of justice in France. In this, the

secrecy of the inquisitorial process is dwelt upon with peculiar

insistence as of the first importance in all criminal cases. The

whole investigation was in the hands of the government official, who

examined every witness by himself, and secretly, the prisoner having no

knowledge of what was done, and no opportunity of arranging a defence.

After all the testimony procurable in this one-sided manner had been

obtained, it was discussed by the judges, in council with other

persons named for the purpose, who decided whether the accused should

be tortured. He could be tortured but once, unless fresh evidence

subsequently was collected against him, and his confession was read

over to him the next day, in order that he might affirm or deny it. A

secret deliberation was then held by the same council, which decided as

to his fate.[1624]

This cruel system was still further perfected by Francis I., who,

in an ordonnance of 1539, expressly abolished the inconvenient

privilege assured to the accused by St. Louis, which was apparently

still occasionally claimed, and directed that in no case should he

be informed of the accusation against him, or of the facts on which

it was based, nor be heard in his defence. Upon examination of the

_ex parte_ testimony, without listening to the prisoner, the judges

ordered torture proportioned to the gravity of the accusation, and

it was applied at once, unless the prisoner appealed, in which case

his appeal was forthwith to be decided by the superior court of the

locality.[1625] The whole process was apparently based upon the

conviction that it was better that a hundred innocent persons should

suffer than that one culprit should escape, and it would not be easy

to devise a course of procedure better fitted to render the use of

torture universal. There was some protection indeed, theoretically

at least, in the provision which held the judge responsible when an

innocent prisoner was tortured without sufficient preliminary proof

to justify it; but this salutary regulation, from the very nature

of things, could not often be enforced, and it was so contrary to

the general spirit of the age that it soon became obsolete. Thus, in

Brittany, perhaps the most independent of the French provinces, the

Coutumier, as revised in 1539, retains such a provision,[1626] but it

disappears in the revision of 1580.

But even this was not all. Torture, as thus employed to convict

the accused, became known as the _question préparatoire_; and, in

defiance of the old rule that it could be applied but once, a second

application, known as the _question définitive_ or _préalable_, became

customary, by which, after condemnation, the prisoner was again

subjected to the extremity of torment in order to discover whether he

had any accomplices, and, if so, to identify them. In this detestable

practice we find another instance of the unfortunate influence of

the Inquisition in modifying the Roman law. The latter expressly and

wisely provided that no one who had confessed should be examined as

to the guilt of another;[1627] and in the ninth century the authors

of the False Decretals had emphatically adopted the principle, which

thus became embodied in ecclesiastical law,[1628] until the ardor of

the Inquisition in hunting down heretics caused it to regard the

conviction of the accused as a barren triumph unless he could be forced

to incriminate his possible associates. It thus finally became a rule

of the Inquisition, promulgated by papal authority, that all who

confessed or were convicted should be tortured at the discretion of the

inquisitor to reveal the names of their accomplices.[1629]

Torture was also generically divided into the _question ordinaire_ and

_extraordinaire_—a rough classification to proportion the severity of

the infliction to the gravity of the crime or the urgency of the case.

Thus, in the most usual kind of torment, the strappado, popularly known

as the _Moine de Caen_, the ordinary form was to tie the prisoner’s

hands behind his back with a piece of iron between them; a cord was

then fastened to his wrists by which, with the aid of a pulley, he was

hoisted from the ground with a weight of one hundred and twenty-five

pounds attached to his feet. In the extraordinary torture, the weight

was increased to two hundred and fifty pounds, and when the victim was

raised to a sufficient height he was dropped and arrested with a jerk

that dislocated his joints, the operation being thrice repeated.[1630]

Thus, in 1549, we see the system in full operation in the case of

Jacques de Coucy, who, in 1544, had surrendered Boulogne to the

English. This was deemed an act of treachery, but he was pardoned in

1547; yet, notwithstanding his pardon, he was subsequently tried,

convicted, condemned to decapitation and quartering, and also to

the _question extraordinaire_ to obtain a denunciation of his

accomplices.[1631]

When Louis XIV., under the inspiration of Colbert, remoulded the

jurisprudence of France, various reforms were introduced into the

criminal law, and changes both for better and worse were made in the

administration of torture. The Ordonnance of 1670 was drawn up by a

committee of the ablest and most enlightened jurists of the day, and

it is a melancholy exhibition of human wisdom when regarded as the

production of such men as Lamoignon, Talon, and Pussort. The cruel

mockery of the _question préalable_ was retained; and in the principal

proceedings all the chances were thrown against the prisoner. All

preliminary testimony was still _ex parte_. The accused was heard, but

he was still examined in secret. Lamoignon vainly endeavored to obtain

for him the advantage of counsel, but Colbert obstinately refused

this concession, and the utmost privilege allowed the defence was the

permission accorded to the judge, at his discretion, to confront the

accused with the adverse witnesses. In the _question préliminaire_,

torture was reserved for capital cases, when the proof was strong and

yet not enough for conviction. During its application it could be

stopped and resumed at the pleasure of the judge, but if the accused

were once unbound and removed from the rack, it could not be repeated,

even though additional evidence were subsequently obtained.[1632]

It was well to prescribe limitations, slender as these were; but in

practice it was found impossible to enforce them, and they afforded

little real protection to the accused when judges, bent upon procuring

conviction, chose to evade them. A contemporary whose judicial position

gave him every opportunity of knowing the truth, remarks: “They have

discovered a jugglery of words and pretend that though it may not

be permissible to _repeat_ the torture, still they have a right to

_continue_ it, though there may have been an interval of three whole

days. Then, if the sufferer, through good luck or by a miracle,

survives this reduplication of agony, they have discovered the notable

resource of _nouveaux indices survenus_, to subject him to it again

without end. In this way they elude the intention of the law, which

sets some bounds to these cruelties and requires the discharge of the

accused who has endured the question without confession, or without

confirming his confession after torture.”[1633] Nor were these the

only modes by which the scanty privileges allowed the prisoner were

curtailed in practice. In 1681, a royal Declaration sets forth that, in

the jurisdiction of Grenoble, judges were in the habit of refusing to

listen to the accused, and of condemning him unheard, an abuse which

was prohibited for the future. Yet other courts subsequently assumed

that this prohibition was only applicable to the Parlement of Grenoble,

and in 1703 another Declaration was necessary to enforce the rule

throughout the kingdom.[1634]

The Ordonnance of 1670, moreover, gave formal expression to another

abuse which was equally brutal and illogical—the employment of torture

_avec réserve des preuves_. When the judge resolved on this, the

silence of the accused under torment did not acquit him, though the

whole theory of the question lay in the necessity of confession.

He simply escaped the death penalty, and could be condemned to any

other punishment which the discretion of the judge might impose, thus

presenting the anomaly of a man neither guilty nor innocent, relieved

from the punishment assigned by the law to the crime for which he had

been arraigned, and condemned to some other penalty without having

been convicted of any offence. This punishing for suspicion was no new

thing. Before torture came fully into vogue, in the early part of the

fourteenth century, a certain Estevenes li Barbiers of Abbeville was

banished under pain of death for suspicion of breach of the peace,

and was subsequently tried, acquitted, and allowed to return.[1635]

About the same period a barber of Anet and his sons were arrested by

the monks of St. Martin-des-Champs on suspicion of killing a guard

who was keeping watch over some hay. The evidence against them was

insufficient, and they were taken to the gallows as a kind of moral

torture not infrequently used in those days. Still refusing to confess,

they were banished forever under pain of hanging, because, as the

record ingenuously states, the crime was not fully proved against

them.[1636] So in the records of the Parlement of Paris there is a

sentence rendered in 1402 against Jehan Dubos, a procureur of the

Parlement, and Ysabelet his wife, for suspicion of the poisoning of

another procureur, Jehan le Charron, the first husband of Ysabelet,

and Dubos was accordingly hanged, while his wife was burnt.[1637]

Jean Bodin, one of the clearest intellects of the sixteenth century,

lays it down as a rule that the penalty should be proportioned to the

proof; he ridicules as obsolete the principle that when the evidence

is not sufficient for conviction the accused should be discharged, and

mentions stripes, fines, imprisonment, the galleys, and degradation

as proper substitutes for death when there is no evidence and only

violent presumption. He gives in illustration of this a case personally

known to him of a noble of Le Mans, who was condemned to nine years of

the galleys for violent suspicion of murder.[1638] The application to

the torture-process of this determination not to allow a man to escape

unless his innocence was proved led to the illogical system of the

_réserve des preuves_.

The theory on which the doctors of the law proceeded was that if

there were evidence sufficient for conviction and the judge yet

tortured the criminal in surplusage without obtaining a confession,

the accused could not be condemned to the full punishment of his

offence, because the use of torture in itself weakened the external

proofs, and therefore the culprit must be sentenced to some lighter

punishment—a refinement worthy of the inconsequential dialectics of

the schools.[1639] The cruel absurdities which the system produced

in practice are well illustrated by a case occurring in Naples in

the sixteenth century. Marc Antonio Maresca of Sorrento was tried

by the Admiralty Court for the murder of a peasant of Miani, in the

market-place. The evidence was strong against him, but there were no

eye-witnesses, and he endured the torture without confession. The court

asserted that it had reserved the evidence, and condemned him to the

galleys for seven years. He appealed to the High Court of the royal

council, and the case was referred to a distinguished jurisconsult,

Tomaso Grammatico, a member of the council. The latter reported that

he must be considered as innocent, after having passed through torture

without confession, and denied the right of the court to reserve the

evidence. Then, with an exhibition of the peculiar logic characteristic

of the criminal jurisprudence of the time, he concluded that Maresca

might be relegated to the islands for five years, although it was a

recognized principle of Neapolitan law that torture could be inflicted

only in accusations of crimes of which the penalty was greater than

relegation. The only thing necessary to complete this tissue of legal

wisdom was afforded by the council, which set aside the judgment of

the Admiralty Court, rejected the report of their colleague, and

condemned the prisoner to the galleys for three years.[1640] Somewhat

less complicated in its folly, but more inexcusable from its date, was

the sentence of the court of Orléans in 1740, by which a man named

Barberousse, from whom no confession had been extorted, was condemned

to the galleys for life, because, as the sentence declared, he was

_strongly suspected_ of premeditated murder.[1641] A more pardonable,

but not more reasonable, example occurred at Halle in 1729, where a

woman accused of infanticide refused to confess, and as she labored

under a physical defect which rendered the application of torture

dangerous to life, the authorities, after due consideration and

consultation of physicians, spared her the torture and banished her

without conviction.[1642]

* * * * *

The same tendency to elude all restrictions on the use of torture

was manifested in the Netherlands, where the procedure was scarcely

known until the 16th century, and where it was only administered

systematically by the ordonnance on criminal justice of Philip II. in

1570. When once employed it rapidly extended until it became almost

universal, both in the provinces which threw off the yoke of Spain and

in those which remained faithful. The limits which Philip had imposed

on it were soon transcended. He had forbidden its employment in all

cases “où il n’y a plaine, demye preuve, ou bien où la preuve est

certaine et indubitable,” thus restricting it to those where there was

very strong presumption without absolute certainty. In transcription

and translation, however, the wording of the ordonnance became changed

to “plaine ou demye preuve, ou bien où la preuve est incertaine ou

douteuse,” thus allowing it in all cases where the judge might have a

doubt not of the guilt but of the innocence of the accused; and by the

time these errors were discovered by a zealous legal antiquarian, the

customs of the tribunals had become so fixed that the attempt to reform

them was vain.[1643] Even the introduction of torture could not wholly

eradicate the notion on which the ordeal system was based, that a man

under accusation must virtually prove his innocence.

* * * * *

In Germany, torture had been reduced to a system, in 1532, by the

Emperor Charles V., whose _Caroline Constitutions_ contain a more

complete code on the subject than had previously existed, except in

the records of the Inquisition. Inconsistent and illogical, it quotes

Ulpian to prove the deceptive nature of the evidence thence derivable;

it pronounces torture to be “res dira, corporibus hominum admodum

noxia et quandoque lethalis, cui et mors ipsa prope proponenda;”[1644]

in some of its provisions it manifests extreme care and tenderness

to guard against abuses, and yet practically it is merciless to the

last degree. Confession made during torture was not to be believed,

nor could a conviction be based upon it; yet what the accused might

confess after being removed from torture was to be received as the

deposition of a dying man, and was full evidence.[1645] In practice,

however, this held good only when adverse to the accused, for he was

brought before his judge after an interval of a day or two, when, if

he confirmed the confession, he was condemned, while if he retracted

it he was at once thrust again upon the rack. In confession under

torture, moreover, he was to be closely cross-questioned, and if any

inconsistency was observable in his self-condemnation the torture was

at once to be redoubled in severity.[1646] The legislator thus makes

the victim expiate the sins of his own vicious system; the victim’s

sufferings increase with the deficiency of the evidence against him,

and the legislator consoles himself with the remark that the victim

has only himself to thank for it, “de se tantum non de alio quæratur.”

To complete the inconsistency of the code, it provided that confession

was not requisite for conviction; irrefragable external evidence was

sufficient; and yet even when such evidence was had, the judge was

empowered to torture in mere surplusage.[1647] Yet there was a great

show of tender consideration for the accused. When the weight of

conflicting evidence inclined to the side of the prisoner, torture was

not to be applied.[1648] Two adverse witnesses, or one unexceptionable

one, were a condition precedent, and the legislator shows that he

was in advance of his age by ruling out all evidence resting on the

assertions of magicians and sorcerers.[1649] To guard against abuse,

the impossible effort was made to define strictly the exact quality and

amount of evidence requisite to justify torture, and the most elaborate

and minute directions were given with respect to all the various

classes of crime, such as homicide, child-murder, robbery, theft,

receiving stolen goods, poisoning, arson, treason, sorcery, and the

like;[1650] while the judge administering torture to an innocent man on

insufficient grounds was liable to make good all damage or suffering

thereby inflicted.[1651] The amount of torment, moreover, was to be

proportioned to the age, sex, and strength of the patient; women during

pregnancy were never to be subjected to it; and in no case was it to be

carried to such a point as to cause permanent injury or death.[1652]

CHAPTER VIII.

FINAL SHAPE OF THE TORTURE SYSTEM.

Charles V. was too astute a ruler not to recognize the aid derivable

from the doctrines of the Roman law in his scheme of restoring the

preponderance of the Kaisership, and he lost no opportunity of

engrafting them on the jurisprudence of Germany. In his Criminal

Constitutions, however, he took care to embody largely the legislation

of his predecessors and contemporaries, and though protests were

uttered by many of the Teutonic princes, the code, adopted by the

Diet of Ratisbon in 1532, became part and parcel of the common law

of Germany.[1653] A fair idea of the shape assumed, under these

influences, by the criminal law in its relations with torture, can

be obtained by examining some of the legal text-books which were

current as manuals of practice from the sixteenth to the eighteenth

century.[1654] As most of the authors of these works appear to condemn

the principle or to lament the necessity of torture, their instructions

as to its employment may safely be assumed to represent the most humane

and enlightened views current during the period.[1655] It is easy to

see from them, however, that though the provisions of the Caroline

Constitutions were still mostly in force, yet the practice had greatly

extended itself, and that the limitations prescribed for the protection

of innocence and helplessness had become of little real effect.

Upon the theory of the Roman law, nobles and the learned professions

had claimed immunity from torture, and the Roman law inspired too

sincere a respect to permit a denial of the claim,[1656] yet the

ingenuity of lawyers reduced the privilege to such narrow proportions

that it was practically almost valueless. For certain crimes, of

course, such as _majestas_, adultery, and incest, the authority of

the Roman law admitted of no exceptions, and to these were speedily

added a number of other offences, classed as _crimina excepta_ or

_nefanda_, which were made to embrace almost all offences of a

capital nature, in which alone torture was as a rule allowable. Thus,

patricide, uxoricide, fratricide, witchcraft, sorcery, counterfeiting,

theft, sacrilege, rape, arson, repeated homicide, etc., came to be

included in the exceptional cases, and the only privileges extended in

them to nobles were that they should not be subjected to “plebeian”

tortures.[1657] As early as 1514, I find an instance which shows how

little advantage these prerogatives afforded in practice. A certain

Dr. Bobenzan, a citizen of good repute and syndic of Erfurt, who

both by position and profession belonged to the excepted class, when

brought up for sentence on a charge of conspiring to betray the city,

and warned that he could retract his confession, extracted under

torture, pathetically replied—“During my examination, I was at one

time stretched upon the rack for six hours, and at another I was

slowly burned for eight hours. If I retract, I shall be exposed to

these torments again and again. I had rather die”—and he was duly

hanged.[1658] In fact, all these exemptions were rather theoretical

than practical, and they were speedily set aside.[1659]

In Catholic countries, of course, the clergy were specially favored,

but the immunity claimed for them by the canon law was practically

reduced to nearly the same as that accorded to nobles.[1660] The

torture inflicted on them, however, was lighter than in the case of

laymen, and proof of a much more decided character was required to

justify their being exposed to torment. As an illustration of this,

von Rosbach remarks that if a layman is found in the house of a pretty

woman, most authors consider the fact sufficient to justify torture on

the charge of adultery, but that this is not the case with priests, who

if they are caught embracing a woman are presumed to be merely blessing

her.[1661] They moreover had the privilege of being tortured only at

the hands of clerical executioners, if such were to be had.[1662]

In Protestant territories respect for the cloth was manifested by

degrading them prior to administering the rack or strappado.[1663]

Some limitations were imposed as to age and strength. Children under

fourteen could not be tortured, nor the aged whose vigor was unequal to

the endurance, but the latter could be tied to the rack, and menaced

to the last extremity; and the elasticity of the rule is manifested in

a case which attracted attention at Halle in the eighteenth century,

in which a man more than eighty years of age was decided to be fit to

bear the infliction, and only escaped by opportunely dying.[1664] In

fact, Grillandus argues that age confers no immunity from torture,

but that a humane judge will inflict it only moderately, except in

atrocious crimes; as for children, though regular torture could not be

employed on them, the rod could be legitimately used.[1665] Insanity

was likewise a safeguard, and much discussion was had as to whether

the deaf, dumb, and blind were liable or not. Zanger decides in the

affirmative whenever, whether as principals or witnesses, good evidence

was to be expected from them;[1666] and Scialoja points out that though

deaf-mutes as a rule are not to be tortured because they cannot dictate

a confession, yet if they can read and write so as to understand the

accusation and write out what they have to say, they are fit subjects

for the torturer.[1667] Pregnant women also were exempt until forty

days after childbed, even though they had become so in prison for

the express purpose of postponing the infliction.[1668] Some kinds

of disease likewise conferred exemption, and jurisconsults undertook

with their customary minuteness to define with precision this nosology

of torture, leading to discussions more prolonged than profitable.

Gout, for instance, gave rise to doubt, and some authors were found to

affirm that they knew of cases in which gouty patients had been cured

by a brisk application of the implements of the _marter-kammer_ or

torture-chamber.[1669] Other legists gravely disputed whether in the

case of epileptics the judge should bear in mind the aspects of the

moon and the equinoxes and solstices, at which times the paroxysms of

the disease were apt to be more violent. Those who thus escaped torture

on account of disease presented a problem which the jurists solved in

their ordinary fashion by condemning them to some other punishment than

that provided for the crime of which they had been accused but not

convicted.[1670]