In theory the accused could be tortured only once, but this, like all

other restrictions in favor of humanity, amounted to but little. A

repetition of torture could be justified on the ground that the first

application had been light or insufficient; the production of fresh

evidence authorized a second and even a third infliction; a failure to

persevere in confession after torture rendered a repetition requisite;

and even a variation in the confession required confirmation by the

rack or strappado.[1671] Many writers affirm that a second torture is

requisite to purge away the defect of the infamy incurred by confession

under the first, as well as to strengthen the evidence against

accomplices.[1672] In fact, some authorities go so far as to place it

entirely at the discretion of the judge whether the accused shall be

subjected or not to repeated torment without fresh evidence,[1673]

and Del Rio mentions a case occurring in Westphalia wherein a man

accused of lycanthropy was tortured twenty times.[1674] This practice

of repeating torture we are told by many authorities was exceedingly

common.[1675]

Another positive rule was that torture could only be applied in

accusations involving life or limb.[1676] Thus, for instance, in

provinces where usury was punishable only by confiscation, torture

could not be used to prove it, but where it entailed also some corporal

infliction, the accused could be subjected to the rack.[1677] Yet

when Bologna undertook to remove the abuses of her torture system she

still allowed it in cases involving a pecuniary fine of a hundred

lire, or over.[1678] Whipping being a corporal punishment, and yet a

much lighter infliction than torture, the legists were divided as to

whether a crime for which it was the only penalty was one involving

the liability of the accused to torture, but the weight of authority,

as usual, leaned to the side of the free employment of the rack.[1679]

All these fine-spun distinctions, however, were of little moment, for

Senckenberg assures us that he had known torture to be resorted to in

mercantile matters, where money only was at stake.[1680] Slaves could

always be tortured in civil suits when their testimony was required,

and freemen when there was suspicion of fraud;[1681] and it was a

general rule of mercantile law that it could be employed in accusations

of fraudulent bankruptcy.[1682] How easily, indeed, all these barriers

were overleaped is seen in the rule that where the penalty was a fine,

and the accused was too poor to pay it, he could be tortured, the

torture serving in lieu of punishment. Thus, whether he was innocent

or guilty, the judge was determined that he should not escape.[1683]

Another method in constant use of evading the limitation in offences

which by statute did not involve torture was by depriving him of food

in prison, or stripping him of clothes in winter, the slow torment of

starvation and cold not being classed legally as torture.[1684]

Equally absolute was the maxim that torture could not be employed

unless there was positive proof that crime of some sort had been

committed, for its object was to ascertain the criminal and not the

crime;[1685] yet von Rosbach remarks that as soon as any one claimed to

have lost anything by theft, the judges of his day hastened to torture

all suspect, without waiting to determine whether or not the theft had

really been committed as assumed;[1686] and von Boden declares that

many tribunals were in the habit of resorting to it in cases wherein

subsequent developments showed that the alleged crime had really not

taken place, a proceeding jocosely characterized by a brother lawyer as

putting the cart before the horse, and bridling him by the tail.[1687]

The history of torture is full of cases illustrating its effectiveness

when thus used. Boyvin du Villars relates that during the war in

Piedmont, in 1559, he released from the dungeons of the Marquis of

Masserano an unfortunate gentleman who had been secretly kept there

for eighteen years, in consequence of having attempted to serve a

process from the Duke of Savoy on the marquis. His disappearance having

naturally been attributed to foul play, his kindred prosecuted an enemy

of the family, who, under stress of torture, duly confessed to having

committed the murder, and was accordingly executed in a town where

Masserano himself was residing.[1688] Godelmann relates that a monument

in a church in upper Germany, representing a man broken on a wheel,

commemorated a case in which two young journeymen set out together to

make the accustomed tour of the country. One of them returned alone,

clad in the garments of the other, and was suspected of having made way

with him. He was arrested, and in the absence of all other evidence was

promptly put to the torture, when he confessed the crime in all its

details and was executed on the wheel—soon after which his companion

returned. Another case was that of a young man near Bremen whose

widowed mother lived in adultery with a servant. The son quarrelled

with the man, who fled and took service with another employer at a

considerable distance. His father, not knowing his departure, accused

the youth of murder, and torture speedily drew from the latter a

full confession of the crime, including his throwing the corpse into

the Weser. Not long after his execution the adulterous serving-man

reappeared and was duly put to death, as also was his father, to make

amends for the blunder of the law.[1689]

A universal prescription existed that the torment should not be so

severe or so prolonged as to endanger life or limb or to injure

the patient permanently; but this, like all the other precautions,

was wholly nugatory. Senckenberg assures us that he was personally

cognizant of cases in which innocent persons had been crippled for

life by torture under false accusations;[1690] and the meek Jesuit Del

Rio, in his instructions to inquisitors, quietly observes that the

flesh should not be wounded nor the bones broken, but that torture

could scarce be properly administered without more or less dislocation

of the joints.[1691] We may comfort ourselves with the assurance of

Grillandus, that cases were rare in which permanent mutilation or death

occurred under the hands of the torturer,[1692] and this admission

lends point to the advice which Simancas gives to judges, that they

should warn the accused, when brought into the torture-chamber, that

if he is crippled or dies under the torture he must hold himself

accountable for it in not spontaneously confessing the truth[1693]—a

warning which was habitually given in the Spanish Inquisition before

applying the torture. Von Boden, moreover, very justly points out the

impossibility of establishing any rules or limitations of practical

utility, when the capacity of endurance varies so greatly in different

constitutions, and the executioners had so many devices for heightening

or lessening, within the established bounds, the agony inflicted by

the various modes of torture allowed by law. Indeed, he does not

hesitate to exclaim that human ingenuity could not invent suffering

more terrible than was constantly and legally employed, and that Satan

himself would be unable to increase its refinements.[1694] In this as

in everything else the legists agreed that the discretion of the judge

was the sole and final arbiter in deciding whether the accused was

“competently” tortured—that is, whether the number and severity of the

inflictions were sufficient to purge him of the adverse evidence.[1695]

It is true that the old rules which subjected the judge to some

responsibility were still nominally in force. When torture was ordered

without a preliminary examination, or when it was excessive and caused

permanent injury, the judge was held by some authorities to have acted

through malice, and his office was no protection against reclamation

for damages.[1696] Zanger also quotes the Roman law as still in force,

to the effect that if the accused dies under the torture, and the

judge has been either bribed or led away by passion, his offence is

capital, while if there had been insufficient preliminary evidence,

he is punishable at discretion.[1697] But, on the other hand, Baldo

tells us that unless there is evidence of malice the presumption is

in favor of the judge in whose hands a prisoner has died or been

permanently crippled, for he is assumed to have acted through zeal

for justice,[1698] and though there were some authorities who denied

this, it seems to have been the general practical conclusion.[1699] The

secrecy of criminal trials, moreover, offered an almost impenetrable

shield to the judge, and the recital by Godelmann of the various kinds

of evidence by which the prisoner could prove the fact that he had

been subjected to torture shows how difficult it was to penetrate into

the secrets of the tribunals.[1700] According to Damhouder, indeed,

the judge could clear himself by his own declaration that he had acted

in accordance with the law, and without fraud or malice.[1701] We are

therefore quite prepared to believe the assertion of Senckenberg that

the rules protecting the prisoner had become obsolete, and that he had

seen not a few instances of their violation without there being any

idea of holding the judge to accountability,[1702] an assertion which

is substantially confirmed by Goetz.[1703]

Not the least of the evils of the system, indeed, was its inevitable

influence upon the judge himself. He was required by his office to

be present during the infliction of torture, and to conduct the

interrogatory personally. Callousness to human suffering, whether

natural or acquired, thus became a necessity, and the delicate

conscientiousness which should be the moving principle of every

Christian tribunal was well-nigh an impossibility.[1704] Nor was this

all, for when even a conscientious judge had once taken upon himself

the responsibility of ordering a fellow-being to the torture, every

motive would lead him to desire the justification of the act by the

extortion of a confession;[1705] and the very idea that he might be

possibly held to accountability, instead of being a safeguard for the

prisoner became a cause of subjecting him to additional agony. Indeed,

the prudence of persevering in torture until a confession was reached

was at least recognized, if not advised, by jurists, and in such a

matter to suggest the idea was practically to recommend it.[1706]

Both the good and the evil impulses of the judge were thus enlisted

against the unfortunate being at his mercy. Human nature was not meant

to face such temptations, and the fearful ingenuity which multiplied

the endless refinements of torture testifies how utterly humanity

yielded to the thirst of wringing conviction from the weaker party

to the unequal conflict, where he who should have been a passionless

arbiter was made necessarily a combatant. How completely the prisoner

thus became a quarry to be hunted to the death is shown by the jocular

remark of Farinacci, a celebrated authority in criminal law, that the

torture of sleeplessness, invented by Marsigli, was most excellent, for

out of a hundred martyrs exposed to it not two could endure it without

becoming confessors as well.[1707] Few, when once engaged in such a

pursuit, could be expected to follow the example of the Milanese judge,

who resolved his doubts as to the efficacy of torture in evidence by

killing a favorite mule, and allowing the accusation to fall upon

one of his servants. The man of course denied the offence, was duly

tortured, confessed, and persisted in his confession after torture.

The judge, thus convinced by experiment of the fallacy of the system,

resigned the office whose duties he could no longer conscientiously

discharge, and in his subsequent career rose to the cardinalate.

The mode in which these untoward results were usually treated is

illustrated in another somewhat similar case which was told to Augustin

Nicholas at Amsterdam in explanation of the fact that the city was

obliged to borrow a headsman from the neighboring towns whenever the

services of one were required for an execution. It appears that a

young man of Amsterdam, returning home late at night from a revel,

sank upon a doorstep in a drunken sleep. A thief emptied his pockets,

securing, among other things, a dirk, with which, a few minutes later,

he stabbed a man in a quarrel. Returning to the sleeper he slipped the

bloody weapon back to its place. The young man awoke, but before he had

taken many steps he was seized by the watch, who had just discovered

the murder. Appearances were against him; he was tortured, confessed,

persisted in confession after torture, and was duly hanged. Soon after

the real criminal was condemned for another crime, and revealed the

history of the previous one, whereupon the States-General of the United

Provinces, using the ordinary logic of the criminal law, deprived the

city of Amsterdam of its executioner, as a punishment for a result that

was inevitable under the system.[1708]

Slight as were the safeguards with which legislators endeavored to

surround the employment of torture, they thus became almost nugatory

in practice under a system which, in the endeavor to reduce doubts

into certainties, ended by leaving everything to the discretion of

the judge. It is instructive to see the parade of insisting upon

the necessity of strong preliminary evidence,[1709] and to read

the elaborate details as to the exact kind and amount of testimony

severally requisite in each description of crime, and then to find that

common report was held sufficient to justify torture, or unexplained

absence before accusation, prevarication under examination, and

even silence; and it is significant of the readiness to resort to

the question on the slenderest pretexts when we see judges solemnly

warned that an evil countenance, though it may argue depravity

in general, does not warrant the presumption of actual guilt in

individual cases;[1710] though pallor, under many circumstances,

was considered to sanction the application of torture,[1711] even

as a pot containing toads, found in the home of a suspected witch,

justified her being placed on the rack.[1712] In fact, witchcraft,

poisoning, highway robbery, and other crimes difficult of proof,

were considered to justify the judge in proceeding to torture on

lighter indications than offences in which evidence was more readily

obtainable.[1713] Subtle lawyers thus exhausted their ingenuity in

discussing all possible varieties of indications, and there grew up

a mass of confused rules, wherein, on many points, each authority

contradicted the other. In a system which thus waxed so complex, the

discretion of the judge at last became the only practical guide, and

the legal writers themselves acknowledge the worthlessness of the rules

so laboriously constructed when they admit that it is left for his

decision to determine whether the indications are sufficient to warrant

the infliction of torture.[1714] How absolute was this discretion, and

how it was exercised, is manifest when Damhouder declares that in his

day bloodthirsty judges were in the habit of employing the severest

torture without sufficient proof or investigation, boasting that by

its means they could extract a confession of everything.[1715] This

fact was no novelty, for the practice had existed, we may say, since

the first introduction of torture. Ippolito dei Marsigli early in

the sixteenth century speaks of judges habitually torturing without

preliminary evidence, and goes so far as to assert, with all the

weight of his supreme authority, that a victim of such wrongs if he

killed his inhuman judge could not be held guilty of homicide nor be

punished with death for the slaying.[1716] It was perhaps to avoid this

responsibility that some of these zealous law-despisers resorted to the

most irregular means to procure evidence. Godelmann and von Rosbach

both tell us that the magistrates of their time, in the absence of all

evidence, sometimes had recourse to sorcerers and to various forms of

divination in order to obtain proof on which they could employ the

rack or strappado. Boys whose shoes were newly greased with lard were

thought to have a special power of detecting witches, and enthusiastic

judges accordingly would sometimes station them, after duly anointing

their boots, at the church doors, so that the luckless wretches could

not get out without being recognized.[1717]

How shocking was the abuse made of this arbitrary power is well

illustrated by a case which occurred in the Spanish colony of New

Granada about the year 1580. The judges of the royal court of Santafé

had rendered themselves odious by their cruelty and covetousness,

when one morning some pasquinades against them were found posted in

the public plaza. Diligent search failed to discover the author, but

a victim was found in the person of a young scrivener whose writing

was thought to bear some resemblance to that of the offensive papers.

He was at once seized, and though libel was not an offence under the

civil law which justified the application of torture, he was ordered to

the rack, when he solemnly warned the judge deputed to inflict it that

if he should die under it he would summon his tormentor to answer in

the presence of God within three days. The judge was intimidated and

refused to perform the office, but another was found of sterner stuff,

who duly performed his functions without extracting a confession, and

the accused was discharged. Then a man who desired to revenge himself

on an enemy asserted that the writing of the latter was like that

of the pasquinades. Juan Rodriguez de los Puertos, the unfortunate

thus designated, was immediately arrested with all his family. An

illegitimate son was promptly tortured, and stated that his father had

written the libels and ordered him to post them. Then Juan himself was

ordered to the rack, but, while protesting his innocence, he begged

rather to be put to death, as he was too old to endure the torment.

He was accordingly hanged, and his son was scourged with two hundred

lashes. All that was needed to render manifest the hideous injustice of

this proceeding was developed a few years later, when the judge who was

afraid to risk the appeal of the first victim was condemned to death

for an assassination, and on the scaffold confessed that he himself had

been the author of the libels against his brother justices.[1718]

Such a system tends of necessity to its own extension, and it

is therefore not surprising to find that the aid of torture was

increasingly invoked. The prisoner who refused to plead, whether there

was any evidence against him or not, could be tortured until his

obstinacy gave way.[1719] Even witnesses were not spared, whether in

civil suits or criminal prosecutions.[1720] It was discretionary with

the judge to inflict moderate torture on them when the truth could

not otherwise be ascertained. Witnesses of low degree could always be

tortured for the purpose of supplying the defect in their testimony

arising from their condition of life. Some jurists, indeed, held that

no witness of low or vile condition could be heard without torture, but

others maintained that poverty alone was not sufficient to render it

necessary. Witnesses who were infamous could not be admitted to testify

without torture; those of good standing were tortured only when they

prevaricated, or when they were apparently committing perjury;[1721]

but, as this was necessarily left with the judges to determine,

the instructions for him to guide his decision by observing their

appearance and manner show how completely the whole case was in his

power, and how readily he could extort evidence to justify the torture

of the prisoner, and then extract from the latter a confession by the

same means. In prosecutions for treason, all witnesses, irrespective

of their rank, were liable to torture,[1722] so that when Pius IV.,

in 1560, was determined to ruin Cardinal Carlo Caraffa, no scruple

was felt, during his trial, as to torturing his friends and retainers

to obtain the evidence upon which he was executed.[1723] There was

a general rule that witnesses could not be tortured until after the

examination of the accused, because, if he confessed, their evidence

was superfluous; but there were exceptions even to this, for if the

criminal was not within the power of the court, witnesses could be

tortured to obtain evidence against him in his absence.[1724] Indeed,

in the effort made early in the sixteenth century to reform the abuse

of torture in Bologna, it was provided that if there were evidence to

show that a man was acquainted with a crime he could be tortured to

obtain evidence on which to base a prosecution, and this before any

proceedings had been commenced against the delinquent.[1725] Evidently

there was no limit to the uses to which torture could be put by a

determined legislator.

An ingenious plan was also adopted by which, when two witnesses

gave testimony irreconcilable with each other, their comparative

credibility was tested by torturing both simultaneously in each

other’s presence.[1726] Evidence given under torture was esteemed

the best kind, and yet with the perpetually recurring inconsistency

which marks this branch of criminal law it was admitted that the

spontaneous testimony of a man of good character could outweigh that of

a disreputable person under torment.[1727] Witnesses, however, could

not be tortured more than three times;[1728] and it was a question

mooted between jurists whether their evidence thus given required,

like the confession of an accused person, to be subsequently ratified

by them.[1729] A reminiscence of Roman law, moreover, is visible in

the rule that no witness could be tortured against his kindred to the

seventh degree, nor against his near connections by marriage, his

feudal superiors, or other similar persons.[1730]

There doubtless was good reason underlying the Roman rule, universally

followed by modern legists, that, whenever several parties were on

trial under the same accusation, the torturer should commence with the

weakest and tenderest, for thus it was expected that a confession could

soonest be extracted; but this eager determination to secure conviction

gave rise to a refinement of cruelty in the prescription that if a

husband and wife were arraigned together, the wife should be tortured

first, and in the presence of her husband; and if a father and son, the

son before his father’s face.[1731]

Grillandus, who seems to have been an unusually humane judge, describes

five degrees of torture, using as a standard the favorite strappado.

The first is purely mental—stripping the prisoner and tying his hands

behind him to the rope, but not hurting him. This can be used when

there is no evidence, and he tells us he had found it very efficacious,

especially with the timid and infirm. The other grades are indicated

in accordance with the strength of the proof and the heinousness of

the crime. The second is hoisting the accused and letting him hang for

the space of an Ave or a Pater Noster, or even a Miserere, but not

elevating him and letting him fall with a jerk. In the third grade this

suspension is prolonged. In the fourth he is allowed to hang for a time

varying from a quarter of an hour to an hour, according to the crime

and the evidence, and he is jerked two or three times. In the fifth and

severest form a weight is attached to his feet and he is repeatedly

jerked. This Grillandus describes as terrible; the whole body is

torn, the limbs are ready to part from the trunk, and death itself is

preferable. It should only, he says, be used in the gravest crimes,

such as heresy or treason, but we have already seen that it was mild in

comparison with many inflictions habitually employed.[1732]

Some facilities for defence were allowed to the accused, but in

practice they were almost hopelessly slender. He was permitted to

employ counsel, and if unable to do so, it was the duty of the judge

to look up testimony for the defence.[1733] After all the adverse

testimony had been taken, and the prisoner had been interrogated,

he could ask to see a copy of the proceedings, in order to frame a

defence; but the request could be refused, in which case, the judge

was bound to sift the evidence himself, and to investigate the

probabilities of innocence or guilt. Von Rosbach states that judges

were not in the habit of granting the request, though no authority

justified them in the refusal;[1734] and half a century later this is

confirmed by Bernhardi, who gives as a reason that by withholding the

proceedings from the accused they saved themselves trouble.[1735] The

right of the accused to see the evidence adduced against him was still

an open question so recently as 1742, for Goetz deems it necessary to

argue at some length to prove it.[1736] The recognized tendency of such

a system to result in an unfavorable conclusion is shown by Zanger’s

elaborate instructions on this point, and his warning that, however

justifiable torture may seem, it ought not to be resorted to without

at least looking at the evidence which may be attainable in favor of

innocence;[1737] while von Rosbach characterizes as the greatest fault

of the tribunals of his day, their neglect to obtain and consider

testimony for the accused as well as against him.[1738] Indeed, when

the public interest was deemed to require it, all safeguards were

withdrawn from the prisoner, as when, in 1719 in Saxony, a mandate

was issued declaring that in cases of thieves and robbers no defence

or exceptions or delays were to be admitted.[1739] In some special and

extraordinary cases, the judge might allow the accused to be confronted

with the accuser, but this was so contrary to the secrecy required by

the inquisitorial system, that he was cautioned that it was a very

unusual course, and one not lightly to be allowed, as it was odious,

unnecessary, and not pertinent to the trial.[1740]

Theoretically, there was a right of appeal against an order to inflict

torture, but this, even when permitted, could usually avail the accused

but little, for the _ex parte_ testimony which had satisfied the lower

judge could, of course, in most instances, be so presented to the

higher court as to insure the affirmation of the order, and prisoners,

in their helplessness, would doubtless feel that by the attempt

to appeal they would probably only increase the severity of their

inevitable sufferings.[1741] Moreover, such appeals were ingeniously

and effectually discouraged by subjecting the advocate of the prisoner

to a fine or some extraordinary punishment if the appeal was pronounced

to be frivolous;[1742] and some authorities, among which was the great

name of Carpzovius, denied that in the inquisitorial process there was

any necessity of communicating to the accused the order to subject

him to torture and then allow him time to appeal against it if so

disposed.[1743]

Slender as were these safeguards in principle, they were reduced

in practice almost to a nullity. That the discretion lodged in the

tribunals was habitually and frightfully abused is only too evident,

when von Rosbach deems it necessary to reprove, as a common error of

the judges of his time, the idea that the use of torture was a matter

altogether dependent upon their pleasure, “as though nature had created

the bodies of prisoners for them to lacerate at will.”[1744] Thus it

was an acknowledged rule that when guilt could be satisfactorily proved

by witnesses, torture was not admissible;[1745] yet Damhouder feels it

necessary to condemn the practice of some judges, who, after conviction

by sufficient evidence, were in the habit of torturing the convict,

and boasted that they never pronounced sentence of death without

having first extorted a confession.[1746] Moreover, the practice was

continued which we have seen habitual in the Châtelet of Paris in the

fourteenth century, whereby, after a man had been duly convicted of

a capital crime, he was tortured to extract confessions of any other

offences of which he might be guilty;[1747] and as late as 1764,

Beccaria lifts his voice against it as a still existing abuse, which he

well qualifies as senseless curiosity, impertinent in the wantonness

of its cruelty.[1748] Martin Bernhardi, writing in 1705, asserts that

this torture after confession and conviction was also resorted to in

order to prevent the convict from appealing from the sentence.[1749]

So, although a man who freely confessed a crime could not be tortured,

according to the general principle of the law, still, if in his

confession he adduced mitigating circumstances, he could be tortured

in order to force him to withdraw them;[1750] and, moreover, if he were

suspected of having accomplices and refused to name them, he could be

tortured as in the _question préalable_ of the French courts.[1751] Yet

the accusation thus obtained was held to be of so little value that it

only warranted the arrest of the parties incriminated, who could not

legally be tortured without further evidence.[1752] In the face of all

this it seems like jesting mockery to find these grim legists tenderly

suggesting that the prisoner should be tortured only in the morning

lest his health should suffer by subjecting him to the question after a

full meal.[1753]

If the practice of the criminal courts had been devised with the

purpose of working injustice under the sacred name of law it could

scarce have been different. Even the inalienable privilege of being

heard in his defence was habitually refused to the accused by many

tribunals, which proceeded at once to torture after hearing the adverse

evidence, a refinement of cruelty and injustice which called forth

labored arguments by von Rosbach and Simancas to prove its impropriety,

thus showing it to be widely practised.[1754] In the same way, the

right to appeal from an order to torture was evaded by judges, who

sent the prisoner to the rack without a preliminary formal order, thus

depriving him of the opportunity of appealing.[1755] Indeed, in time

it was admitted by many jurists that the judge at his pleasure could

refuse to allow an appeal; and that in no case was he to wait more than

ten days for the decision of the superior tribunal.[1756]

The frequency with which torture was used is manifested in the low

rate which was paid for its application. In the municipal accounts

of Valenciennes, between 1538 and 1573, the legal fee paid to the

executioner for each torturing of a prisoner is only two sous and a

half, while he is allowed the same sum for the white gloves worn at an

execution, and ten sous are given him for such light jobs as piercing

the tongue.[1757]

With all this hideous accumulation of cruelty which shrank from nothing

in the effort to wring a confession from the wretched victim, that

confession, when thus so dearly obtained, was estimated at its true

worthlessness. It was insufficient for conviction unless confirmed by

the accused in a subsequent examination beyond the confines of the

torture-chamber, at an interval of from one to three days.[1758] This

confirmation was by no means universal, and the treatment of cases

of retracted confession was the subject of much debate. Bodin, in

1579, complains that witches sometimes denied what they had confessed

under torture, and that the puzzled judge was then obliged to release

them.[1759] Such a result, however, was so totally at variance with

the determination to obtain a conviction which marks the criminal

jurisprudence of the period that it was not likely to be submitted

to with patience. Accordingly the general practice was that, if the

confession was retracted, the accused was again tortured, when a second

confession and retraction made an exceedingly awkward dilemma for

the subtle jurisconsults. They agreed that he should not be allowed

to escape after giving so much trouble. Some advocated the regular

punishment of his crime, others demanded for him an extraordinary

penalty; some, again, were in favor of incarcerating him;[1760] others

assumed that he should be tortured a third time, when a confession,

followed as before by a recantation, released him from further

torment, for the admirable reason that nature and justice alike

abhorred infinity.[1761] This was too metaphysical for some jurists,

who referred the whole question to the discretion of the judge, with

power to prolong the series of alternate confession and retraction

indefinitely, acting doubtless on the theory that most prisoners were

like the scamp spoken of by Ippolito dei Marsigli, who, after repeated

tortures and revocations, when asked by the judge why he retracted

his confession so often, replied that he would rather be tortured a

thousand times in the arms than once in the neck, for he could easily

find a doctor to set his arm but never one to set his neck.[1762]

The magistrates in some places were in the habit of imprisoning or

banishing such persons, thus punishing them without conviction,

and inflicting a penalty unsuited to the crime of which they were

accused.[1763] Others solved the knotty problem by judiciously advising

that in the uncertainty of doubt as to his guilt, the prisoner should

be soundly scourged and turned loose, after taking an oath not to

bring an action for false imprisonment against his tormentors;[1764]

but, according to some authorities, this kind of oath, or _urpheda_

as it was called, was of no legal value.[1765] Towards the end of

the torture system, however, the more humane though not very logical

doctrine prevailed in Germany that a retraction absolved the accused,

unless new and different evidence was brought forward, and this had to

be stronger and clearer than before, for the presumption of innocence

was now with the accused, the torture having purged him of former

suspicion.[1766]

This necessity of repeating a confession after torture gave rise to

another question which caused considerable difference of opinion among

doctors, namely, whether witnesses who were tortured had to confirm

their evidence subsequently, and whether they, in case of retraction

or the presentation of fresh evidence, could be tortured repeatedly.

As usual in doubts respecting torture, the weight of authority was in

favor of its most liberal use.[1767]

There were other curious inconsistencies in the system which manifest

still more clearly the real estimate placed on confessions under

torture. If the torture had been inflicted by an over-zealous judge

without proper preliminary evidence, confession amounted legally to

nothing, even though proofs were subsequently discovered.[1768] If, on

the other hand, absolute and incontrovertible proof of guilt were had,

and the over-zealous judge tortured in surplusage without extracting

a confession, there arose another of the knotty points to which

the torture system inevitably tended and about which jurisconsults

differed. Some held that he was to be absolved, because torture

purged him of all the evidence against him; others argued that he

was to be punished with the full penalty of his crime, because the

torture was illegal and therefore null and void; others again took

a middle course and decided that he was to be visited, not with the

penalty of his crime, but with something else, at the discretion of

his judge.[1769] According to law, indeed, torture without confession

was a full acquittal; but here, again, practice intervened to destroy

what little humanity was admitted by jurists, and the accused under

such circumstances was still held suspect, and was liable at any

moment to be tried again for the same offence.[1770] Indeed, at a

comparatively early period after the introduction of torture, we

are told that if the accused endured it without confession he was

to be kept in prison to see whether new evidence might not turn

up: if none came, then the judge was to assign him a reasonable

delay for his defence; he was regularly tried, when if convicted

he was punished; if not he was discharged.[1771] If, again, a man

and woman were tortured on an accusation of adultery committed with

each other, and if one confessed while the other did not, both were

acquitted according to some authorities, while others held that the

one who confessed should receive some punishment different from that

provided for the crime, while the accomplice was to be discharged

on taking a purgatorial oath.[1772] Nothing more contradictory and

illogical can well be imagined, and, as if to crown the absurdity of

the whole, torture after conviction was allowed in order to prevent

appeals; and if the unfortunate, at the place of execution, chanced

to assert his innocence, he was often hurried from the scaffold to

the rack in obedience to the theory that the confession must remain

unretracted;[1773] though, if the judge had taken the precaution to

have the prisoner’s ratification of his confession duly certified to by

a notary and witnesses, this trouble might be avoided, and the culprit

be promptly executed in spite of his retraction.[1774] One can scarce

repress a grim smile at finding that this series of horrors had pious

defenders who urged that a merciful consideration for the offender’s

soul required that he should be brought to confess his iniquities

in order to secure his eternal salvation.[1775] It was a minor, yet

none the less a flagrant injustice, that when a man had endured the

torture without confession, and was therefore discharged as innocent,

he or his heirs were obliged to defray the whole expenses of his

prosecution.[1776]

The atrocity of this whole system of so-called criminal justice is

forcibly described by the honest indignation of Augustin Nicolas, who,

in his judicial capacity under Louis XIV., had ample opportunities

of observing its practical working and results. “The strappado, so

common in Italy, and which yet is forbidden under the Roman law ...

the vigils of Spain, which oblige a man to support himself by sheer

muscular effort for seven hours, to avoid sitting on a pointed iron,

which pierces him with insufferable pain; the vigils of Florence,

or of Marsiglio, which have been described above; our iron stools

heated to redness, on which we place poor half-witted women accused of

witchcraft, exhausted by frightful imprisonment, rotting from their

dark and filthy dungeons, loaded with chains, fleshless, and half

dead; and we pretend that the human frame can resist these devilish

practices, and that the confessions which our wretched victims make of

everything that may be charged against them are true.”[1777] Under such

a scheme of jurisprudence, it is easy to understand and appreciate the

case of the unfortunate peasant, sentenced for witchcraft, who, in his

dying confession to the priest, admitted that he was a sorcerer, and

humbly welcomed death as the fitting retribution for the unpardonable

crimes of which he had been found guilty, but pitifully inquired of

the shuddering confessor whether one could not be a sorcerer without

knowing it.[1778]

If anything were wanting to show how completely the inquisitorial

process turned all the chances against the accused, it is to be found

in the quaint advice given by Damhouder. He counsels the prisoner,

when required to plead, to prevent his judge from taking advantage of

any adverse points that might occur, as, for instance, in a charge of

homicide to assert his innocence, but to add that, if he were proved

to have committed the crime, he then declares it to have been done in

self-defence.[1779]

* * * * *

We have seen above how great was the part of the Inquisition in

introducing and moulding the whole system of torture on the ruins

of the feudal law. Even so, in the reconstruction of European

jurisprudence, during the sixteenth and seventeenth centuries, the

ardor of the inquisitorial proceedings against witchcraft, and the

panic on the subject which long pervaded Christendom, had a powerful

influence in familiarizing the minds of men with the use of torture as

a necessary instrument of justice, and in authorizing its employment to

an extent which now is almost inconceivable.

From a very early period, torture was recognized as indispensable in

all trials for sorcery and magic. In 358, an edict of Constantius

decreed that no dignity of birth or station should protect those

accused of such offences from its application in the severest

form.[1780] How universal its employment thus became is evident from a

canon of the council of Merida, in 666, declaring that priests, when

sick, sometimes accused the slaves of their churches of bewitching

them, and impiously tortured them against all ecclesiastical

rules.[1781] It was, therefore, natural that all such crimes should

be regarded as peculiarly subjecting all suspected of them to the

last extremity of torture, and its use in the trials of witches and

sorcerers came to be regarded as indispensable.

The necessity which all men felt that these crimes should be

extirpated with merciless severity, and the impalpable nature of

the testimony on which the tribunals had mostly to depend, added to

this traditional belief in the fitness of torture. Witchcraft was

considered as peculiarly difficult of proof, and torture consequently

became an unfailing resource to the puzzled tribunal, although every

legal safeguard was refused to the wretched criminal, and the widest

latitude of evidence was allowed. Bodin expressly declares that in

so fearful a crime no rules of procedure are to be observed.[1782]

Sons were admitted to testify against their fathers, and young girls

were regarded as the best of witnesses against their mothers; the

disrepute of a witness was no bar to the reception of his testimony,

and even children of irresponsible age were allowed to swear before

they rightly knew the nature of the oath on which hung the life of

a parent. Boguet, who presided over a tribunal in Franche Comté, in

stating this rule relates a most pathetic case of his own in which a

man named Guillaume Vuillermoz was convicted on the testimony of his

son, aged twelve, and the hardened nerves of the judge were wrung at

the despair of the unhappy prisoner on being confronted with his child,

who persisted in his story with a callousness only to be explained by

the will of God, who stifled in him all natural affection in order to

bring to condign punishment this most hideous offence.[1783] Louïse

prints the records of a trial in 1662, wherein Philippe Polus was

condemned on the evidence of his daughter, a child in her ninth year.

There seems to have been no other proof against him, and according

to her own testimony the girl had been a sorceress since her fourth

year.[1784] Even advocates and counsel could be forced to give evidence

against their clients.[1785] Notwithstanding the ample resources thus

afforded for conviction, Jacob Rickius, who, as a magistrate during an

epidemic of witchcraft, at the close of the sixteenth century, had the

fullest practical experience on the subject, complains that no reliance

could be placed on legal witnesses to produce conviction;[1786] and Del

Rio only expresses the general opinion when he avers that torture is

to be more readily resorted to in witchcraft than in other crimes, in

consequence of the extreme difficulty of its proof.[1787]

Even the widespread belief that Satan aided his worshippers in

their extremity by rendering them insensible to pain did not serve

to relax the efforts of the extirpators of witchcraft, though they

could hardly avoid the conclusion that they were punishing only the

innocent, and allowing the guilty to escape. Boguet, indeed, seems to

recognize this practical inconsistency, and, though it is permissible

to use torture even during church festivals, he advises the judge not

to have recourse to it because of its inutility.[1788] How little

his advice was heeded, and how little the courts deemed themselves

able to dispense with torture, is shown in the charter of Hainault

of 1619 where in these cases the tribunal is authorized to employ it

to ascertain the truth of the charge, or to discover accomplices, or

_for any other purpose_.[1789] In this dilemma, various means were

adopted to circumvent the arch enemy, of which the one most generally

resorted to was that of shaving the whole person carefully before

applying the torture,[1790] a process which served as an excuse for

the most indecent outrages upon female prisoners. Yet notwithstanding

all the precautions of the most experienced exorcists, we find in

the bloody farce of Urbain Grandier that the fiercest torments left

him in capital spirits and good humor.[1791] Damhouder relates at

much length a curious case which occurred under his own eyes while

member of the council of Bruges, when he assisted at the torture of a

reputed witch who had exercised her power only in good works. During

three examinations, she bore the severest torture without shrinking,

sometimes sleeping and sometimes defiantly snapping her fingers at the

judges. At length, during the process of shaving, a slip of parchment

covered with cabalistic characters was found concealed in her person,

and on its removal she was speedily brought to acknowledge her pact

with the Evil One.[1792] The tender-hearted Rickius was so convinced

of this source of uncertainty that he was accustomed to administer the

cold-water ordeal to all the miserable old women brought before him

on such charges, but he is careful to inform us that this was only

preparatory proof, to enable him with a safer conscience to torture

those who were so ill-advised as to float instead of sinking.[1793]

Grillandus tells us that he had met with cases in which the

insensibility to the severest tortures was so complete that only magic

arts could explain it; the patient seemed to be supported in the air,

or to be in a profound stupor, and he mentions some of the formulas

which were employed for the purpose. In one case at Rome a notorious

thief suspected of a large robbery came to him voluntarily and said

he wanted to purge himself of the rumors against him. He was tortured

repeatedly in various ways; when the operation began he muttered

something and fell into a stupor in which he was absolutely insensible.

After exhausting his ingenuity, Grillandus had to discharge him. In

another case the formula “Quemadmodum lac beatæ,” etc., produced the

same effect.[1794]

From the time when the Cappadocians of old were said to harden their

children with torture in order that they might profitably follow the

profession of false witnesses, there existed so general a belief among

experienced men that criminals of all kinds had secrets with which

to deaden sensibility to torture that it is not improbable that the

unfortunates occasionally were able to strengthen their endurance with

some anæsthetic. Boguet complains that in modern times torture had

become almost useless not only with sorcerers but with criminals in

general, and Damhouder asserts that professional malefactors were in

the habit of torturing each other in order to be hardened when brought

to justice, in consequence of which he advises the judge to inquire

into the antecedents of prisoners, in order to proportion the severity

of the torture to the necessities of the case.[1795]

When the concentrated energies of these ingenious and determined

law dispensers failed to extort by such means a confession from the

wretched clowns and gossips thus placed at their mercy, they were even

yet not wholly at fault. The primitive teachings of the Inquisition

of the thirteenth century were not yet obsolete; they were instructed

to treat the prisoner kindly, and to introduce into his dungeon some

prepossessing agent who should make friends with him and induce him

to confess what was wanted of him, promising to influence the judge

to pardon, when at that moment the judge is to enter the cell and

to promise grace, with the mental reservation that his grace should

be shown to the community and not to the prisoner.[1796] Or, still

following the ancient traditions, spies were to be confined with

him, who should profess to be likewise sorcerers and thus lead him to

incriminate himself, or else the unhappy wretch was to be told that

his associate prisoners had borne testimony against him, in order to

induce him to revenge himself by turning witness against them.[1797]

Boguet, indeed, does not consider it correct to mislead the accused

with promises of pardon, and though it was generally approved by

legists, he decides against it.[1798] Simancas also considers such

artifices to be illegal, and that a confession thus procured could be

retracted.[1799] Del Rio, on the other hand, while loftily condemning

the outspoken trickery recommended by Sprenger and Bodin, proceeds to

draw a careful distinction between _dolum bonum_ and _dolum malum_.

He forbids absolute lying, but advises equivocation and ambiguous

promises, and then, if the prisoner is deceived, he has only himself to

thank for it.[1800] In fact, these men conceived that they were engaged

in a direct and personal struggle with the Evil One, and that Satan

could only be overcome with his own arts.

When the law thus pitilessly turned all the chances against the victim,

it is easy to understand that few escaped. In the existing condition

of popular frenzy on the subject, there was no one but could feel that

he might at any moment be brought under accusation by personal enemies

or by unfortunates compelled on the rack to declare the names of all

whom they might have seen congregated at the witches’ sabbat. We can

thus readily comprehend the feelings of those who, living under such

uncertainties, coolly and deliberately made up their minds in advance

that, if chance should expose them to suspicion, they would at once

admit everything that the inquisitors might desire of them, preferring

a speedy death to one more lingering and scarcely less certain.[1801]

The evil fostered with such careful exaggeration grew to so great

proportions that Father Tanner speaks of the multitude of witches

who were daily convicted through torture;[1802] and that this was no

mere form of speech is evident when one judge, in a treatise on the

subject, boasted of his zeal and experience in having dispatched within

his single district nine hundred wretches in the space of fifteen

years, and another trustworthy authority relates with pride that in

the diocese of Como alone as many as a thousand had been burnt in a

twelvemonth, while the annual average was over a hundred.[1803]

* * * * *

Were it not for the steady patronage bestowed on the system by the

Church, it would seem strange that torture should invade the quiet

and holy retirement of the cloister. Its use, however, in monasteries

was, if possible, even more arbitrary than in secular tribunals. Monks

and nuns were exempt from the jurisdiction of the civil authorities,

and were bound by vows of blind obedience to their superiors. The

head of each convent thus was an autocrat, and when investigating the

delinquencies of any of his flock he was subjected to no limitations.

Not only could he order the accused to be tortured at will, but the

witnesses, whether male or female, were liable to the same treatment,

with the exception that in the case of nuns it was recommended that

the tortures employed should not be indecent or too severe for the

fragility of the sex. As elsewhere, it was customary to commence the

torment with the weakest of the witnesses or criminals.[1804]

CHAPTER IX.

ENGLAND AND THE NORTHERN RACES.

In this long history of legalized cruelty and wrong the races of

northern Europe are mostly exceptional. Yet it is somewhat remarkable

that the first regular mediæval code in which torture is admitted as

a means of investigation is the one of all others in which it would

be least expected. The earliest extant law of Iceland, the Grágás,

which dates from 1119, has one or two indications of its existence

which are interesting as being purely autochthonic and in no sense

derivable, as in the rest of Europe, from the Roman law. The character

of the people, indeed, and of their institutions would seem to be

peculiarly incompatible with the use of torture, for almost all cases

were submitted to inquests or juries of the vicinage, and, when this

was unsuitable, resort was had to the ordeal. The indigenous origin of

the custom, however, is shown by the fact that while it was used in

but few matters, the most prominent class subjected to it was that of

pregnant women, who have elsewhere been spared by the common consent

of even the most pitiless legislators. An unmarried woman with child,

who refused to name her seducer, could be forced to do so by moderate

torments which should not break or discolor the skin.[1805] The object

of this was to enable the family to obtain the fine from the seducer,

and to save themselves from the expense of supporting the child.

When the mother confessed, however, additional evidence was required

to convict the putative father. When the inhabitants of a district,

also, refused to deliver up a man claimed as an outlaw by another

district, they were bound to torture him to ascertain the truth of the

charge[1806]—a provision doubtless explicable by the important part

occupied by outlawry in all the schemes of Scandinavian legislation.

These are the only instances in which it is permitted, while its

occasional abuse is shown by a section providing punishment for its

illegal employment.[1807] Slaves, moreover, under the Icelandic, as

under other codes, had no protection at law, and were at the mercy

of their masters.[1808] These few indications of the liability of

freemen, however, disappear about the time when the rest of Europe was

commencing to adopt the use of torture. In the _Jarnsida_, or code

compiled for Iceland by Hako Hakonsen of Norway, in 1258, there is no

allusion whatever to its use.

The Scandinavian nations, as a whole, did not admit torture into their

systems of jurisprudence. The institution of the jury in various forms

was common to all, and where proof upon open trial was deficient,

they allowed, until a comparatively recent date, the accused to

clear himself by sacramental purgation. Thus, in the Danish laws of

Waldemar II., to which the date of 1240 is generally assigned, there

is a species of permanent jury, _sandemend_, as well as a temporary

one, _nefninge_, and torture seems to have formed no part of judicial

proceedings.[1809] This code was in force until 1683, when that of

Christiern V. was promulgated. It is probable that the employment

of torture may have crept in from Germany, without being regularly

sanctioned, for we find Christiern forbidding its use except in cases

of high treason, where the magnitude of the offence seems to him to

justify the infraction of the general rule. He, however, encouraged

one of its greatest abuses in permitting it on criminals condemned to

death.[1810]

Among the kindred Frisians the tendency was the same. Their code of

1323 is a faithful transcript of the primitive Barbarian jurisprudence.

It contains no allusions to torture, and as all crimes, except theft,

were still compounded for with _wer-gilds_, it may reasonably be

assumed that the extortion of confession was not recognized as a

judicial expedient.[1811]

So, in Sweden, the code of Raguald, compiled in 1441, and in force

until 1614, during a period in which torture flourished in almost every

European state, has no place for it. Trials are conducted before twelve

_nempdarii_, or jurymen, and in doubtful cases the accused is directed

to clear himself by oath or by conjurators. For atrocious crimes the

punishments are severe, such as the wheel or the stake, but inflictions

like these are reserved for the condemned.[1812] Into these distant

regions the Roman jurisprudence penetrated slowly, and the jury trial

was an elastic institution which adapted itself to all cases.

* * * * *

To the same causes may be attributed the absence of torture from the

Common Law of England. In common with the other Barbarian races,

the Anglo-Saxons solved all doubtful questions by the ordeal and

wager of law, and in the collection known as the laws of Henry I. a

principle is laid down which is incompatible with the whole theory of

torture, whether used to extract confession or evidence. A confession

obtained by fear or fraud is pronounced invalid, and no one who has

confessed his own crime is to be believed with respect to that of

another.[1813] Such a principle, combined with the gradual growth of

the trial by jury, doubtless preserved the law from the contamination

of inquisitorial procedure, though, as we have seen, torture was

extensively employed for purposes of extortion by marauders and

lawless nobles during periods of civil commotion. Glanville makes no

allusion to it, and though Bracton shows a wide acquaintance with the

revived Roman jurisprudence, and makes extensive use of it in all

matters where it could be advantageously harmonized with existing

institutions, he is careful to abstain from introducing torture into

criminal procedure.[1814] A clause in Magna Charta, indeed, has been

held by high authority to inhibit the employment of torture, but it

has no direct allusion to the subject, which was not a living question

at the time, and was probably not thought of by any of the parties to

that transaction.[1815] In fact, the whole spirit of English law was

irreconcilable with the fundamental principles of the inquisitorial

process. When the accused was brought before court, he was, it is

true, required to appear ungirdled, without boots, or cap, or cloak,

to show his humility, but it is expressly directed that he shall not

be chained, lest his fetters should embarrass his self-possession in

his defence, and he was not to be forced in any way to state anything

but of his own free will.[1816] Men who could frame legal maxims so

honorable to their sense of justice and so far in advance of the

received notions of their age could evidently have nothing in common

with the principles which placed the main reliance of the law on

confession to be wrung from the lips of an unfortunate wretch who was

systematically deprived of all support and assistance. To do so, in

fact, is classed with homicide, by a legal writer of the period;[1817]

but that it was occasionally practised is shown by his giving a form

for the appeal of homicide against judges guilty of it.[1818]

Under the common law, therefore, torture had properly no existence

in England, and in spite of occasional efforts on the part of the

Plantagenets[1819] the character of the national institutions kept at

bay the absorbing and centralizing influences of the Roman law.[1820]

Yet their wide acceptance in France, and their attractiveness to those

who desired to wield absolute authority, gradually accustomed the crown

and the crown lawyers to the idea that torture could be administered

by order of the sovereign. Sir John Fortescue, who was Lord Chancellor

under Henry VI., inveighs at great length against the French law for

its cruel procedures, and with much satisfaction contrasts it with

the English practice,[1821] and yet he does not deny that torture was

occasionally used in England. Indeed, his fervent arguments against

the system, addressed to Prince Edward, indicate an anxiety to combat

and resist the spread of civil law doctrines on the subject, which

doubtless were favored by the influence of Margaret of Anjou. An

instance of its application in 1468 has, in fact, been recorded,

which resulted in the execution of Sir Thomas Coke, Lord Mayor of

London;[1822] and in 1485, Innocent VIII. remonstrated with Henry VII.

respecting some proceedings against ecclesiastics who were scourged,

tortured, and hanged.[1823]

Under Henry VIII. and his children, the power of the crown was largely

extended, and the doctrine became fashionable that, though under the

law no one could be tortured for confession or evidence, yet outside

and above the law the royal prerogative was supreme, and that a

warrant from the King in Privy Council fully justified the use of the

rack and the introduction of the secret inquisitorial process, with

all its attendant cruelty and injustice. It is difficult to conceive

the subserviency which could reconcile men, bred in the open and

manly justice of the common law, to a system so subversive of all the

principles in which they had been trained. Yet the loftiest names of

the profession were concerned in transactions which they knew to be in

contravention of the laws of the land.

Sir Thomas Smith, one of the ornaments of the Elizabethan bar,

condemned the practice as not only illegal, but illogical. “Torment or

question, which is used by order of the civile law and custome of other

countries, ... is not used in England.... The nature of Englishmen is

to neglect death, to abide no torment; and therefore hee will confesse

rather to have done anything, yea, to have killed his owne father,

than to suffer torment.” And yet, a few years later, we find the same

Sir Thomas writing to Lord Burghley, in 1571, respecting two miserable

wretches whom he was engaged in racking under a warrant from Queen

Elizabeth.[1824]

In like manner, Sir Edward Coke, in his Institutes, declares—“So, as

there is no law to warrant tortures in this land, nor can they be

justified by any prescription, being so lately brought in.” Yet, in

1603, there is a warrant addressed to Coke and Fleming, as Attorney and

Solicitor General, directing them to apply torture to a servant of Lord

Hundsdon, who had been guilty of some idle speeches respecting King

James, and the resultant confession is in Coke’s handwriting, showing

that he personally superintended the examination.[1825]

Coke’s great rival, Lord Bacon, was as subservient as his

contemporaries. In 1619, while Chancellor, we find him writing to

King James concerning a prisoner confined in the Tower on suspicion

of treason—“If it may not be done otherwise, it is fit Peacock be

put to torture. He deserveth it as well as Peacham did”—Peacham

being an unfortunate parson in whose desk was found a MS. sermon,

never preached, containing some unpalatable reflections on the royal

prerogative, which the prerogative resented by putting him on the

rack.[1826]

As in other countries, so in England, when torture was once introduced,

it rapidly broke the bounds which the prudence of the Roman lawgivers

had established for it. Treason was a most elastic crime, as was shown

in 1553 by its serving as an excuse for the torture of one Stonyng,

a prisoner in the Marshalsea, because he had transcribed for the

amusement of his fellow-captives a satirical description of Philip II.,

whose marriage with Queen Mary was then under contemplation.[1827] But

it was not only in cases of high treason that the royal prerogative

was allowed to transgress the limits of the law. Matters of religion,

indeed, in those times of perennial change, when dynasties depended

on dogmas, might come under the comprehensive head of constructive

treason, and be considered to justify the torture even of women, as

in the instance of Ann Askew in 1546;[1828] and of monks guilty of

no other crime than the endeavor to preserve their monasteries by

pretended miracles.[1829] Under Elizabeth, engaged in a death-struggle

with Rome, matters became even worse, and torture was habitually used

on the unhappy Catholics who were thrown into the Tower. As the whole

matter was without the color of law, all legal limitations seem to

have been disregarded. The Jesuit Campion was subjected to the rack no

less than three times with extreme severity, and in the intervals was

made to dispute with Protestant divines.[1830] Having once thus secured

its introduction in state trials for treason, the custom inevitably

tended to spread to the sphere of the most ordinary criminal business.

Suspicion of theft, murder, horse-stealing, embezzlement, and other

similar offences was sufficient to consign the unfortunate accused to

the tender mercies of the rack, the Scavenger’s Daughter,[1831] and the

manacles, when the aggrieved person had influence enough to procure

a royal warrant; nor were these proceedings confined to the secret

dungeons of the Tower, for the records show that torture began to be

habitually applied in the Bridewell. Jardine, however, states that this

especially dangerous extension of the abuse appears to have ceased

with the death of Elizabeth, and that no trace of the torture even of

political prisoners can be found later than the year 1640.[1832] The

royal prerogative had begun to be too severely questioned to render

such manifestations of it prudent, and the Great Rebellion finally

settled the constitutional rights of the subject on too secure a basis

for even the time-serving statesmen of the Restoration to venture on

a renewal of the former practice. Yet how nearly, at one time, it

had come to be engrafted on the law of the land is evident from its

being sufficiently recognized as a legal procedure for persons of

noble blood to claim immunity from it, and for the judges to admit

that claim as a special privilege. In the Countess of Shrewsbury’s

case, the judges, among whom was Sir Edward Coke, declared that there

was a “privilege which the law gives for the honor and reverence of

the nobility, that their bodies are not subject to torture _in causa

criminis læsæ majestatis_,” and no instance is on record to disprove

the assertion.[1833]

In one class of offences, however, torture was frequently used to a

later date, and without requiring the royal intervention. As on the

Continent, sorcery and witchcraft were regarded as crimes of such

peculiar atrocity, and the dread they excited was so universal and

intense, that those accused of them were practically placed beyond

the pale of the law, and no means were considered too severe to

secure the conviction which in many cases could only be obtained by

confession. We have seen that among the refinements of Italian torture,

the deprivation of sleep for forty hours was considered by the most

experienced authorities on the subject to be second to none in severity

and effectiveness. It neither lacerated the flesh, dislocated the

joints, nor broke the bones, and yet few things could be conceived as

more likely to cloud the intellect, break down the will, and reduce

the prisoner into a frame of mind in which he would be ready to admit

anything that the questions of his examiners might suggest to him.

In English witch-trials, this method of torture was not infrequently

resorted to, without the limitation of time to which it was restricted

by the more experienced jurists of Italy.[1834]

Another form of torture used in Great Britain, which doubtless proved

exceedingly efficacious, was the “pricking” adopted to discover the

insensible spot, which, according to popular belief, was one of the

invariable signs of a witch. There were even professional “prickers”

who were called in as experts in the witch-trials, and who thrust long

pins into the body of the accused until some result, either negative or

positive, was obtained.[1835] Thus at the prosecution of Janet Barker,

in Edinburgh, in 1643, it is recorded that “she had the usual mark on

the left shoulder, which enabled one James Scober, a skilful pricker

of witches, to find her out by putting a large pin into it, which she

never felt.”[1836] One witch pricker, named Kincaid, used to strip his

victims, bind them hand and foot, and then thrust his pins into every

part of their bodies, until, exhausted and rendered speechless by the

torture, they failed to scream, when he would triumphantly proclaim

that he had found the witch-mark. Another pricker confessed on the

gallows that he had illegally caused the death of a hundred and twenty

women whom he had thus pricked for witchcraft.[1837]

In Scotland, torture, as a regular form of judicial investigation,

was of late introduction. In the various codes collected by Skene,

extending from an early period to the commencement of the fifteenth

century, there is no allusion whatever to it. In the last of these

codes, adopted under Robert III. by the Parliament of Scotland in

1400, the provisions respecting the wager of battle show that torture

would have been superfluous as a means of supplementing deficient

evidence.[1838] The influence of the Roman law, however, though late in

appearing, was eventually much more deeply felt in Scotland than in the

sister kingdom, and consequently torture at length came to be regarded

as an ordinary resource in doubtful cases. In the witch persecutions,

especially, which in Scotland rivalled the worst excesses of the

Inquisition of Italy and Spain, it was carried to a pitch of frightful

cruelty which far transcended the limits assigned to it elsewhere.

Thus the vigils, which we have seen consisted simply in keeping the

accused awake for forty hours by the simplest modes, in Scotland were

fearfully aggravated by a witch-bridle, a band of iron fastened around

the face, with four diverging points thrust into the mouth. With this

the accused was secured immovably to a wall, and cases are on record in

which this insupportable torment was prolonged for five and even for

nine days. In other cases an enormous weight of iron hoops and chains,

amounting to twenty-five or thirty stone, would be accumulated on the

body of the patient.[1839] Indeed, it is difficult to believe that

the accounts which have been preserved to us of these terrible scenes

are not exaggerated. No cruelty is too great for the conscientious

persecutor who believes that he is avenging his God, but the limitless

capacity of human nature for inflicting is not complemented by a

limitless capacity of endurance on the part of the victim; and well

authenticated as the accounts of the Scottish witch-trials may be, they

seem to transcend the possibility of human strength.[1840] In another

respect these witch-trials were marked with a peculiar atrocity.

Elsewhere, as we have seen, confession was requisite for condemnation,

thus affording some color of excuse for torture. In Scotland, however,

the testimony of the pricker was sufficient, and torture thus became a

wanton and cruel surplusage, rendered the less defensible in that the

poor wretch who yielded to the torment and confessed was rewarded by

being mercifully strangled before being burnt, while those who held out

under torture were condemned and burnt alive.[1841]

Torture thus maintained its place in the laws of Scotland as long as

the kingdom preserved the right of self-legislation, though an attempt

seems to have been made to repress it during the temporary union with

England under the Commonwealth. In 1652, when the English Commissioners

for the administration of justice sat in Edinburgh, among other

criminals brought before them were two witches who had confessed their

guilt before the Kirk. They were the remains of a party of six, four of

whom had died under the tortures employed to procure confession—such as

hanging by the thumbs tied behind the back, scourging, burning the feet

and head and putting lighted candles into their mouths, clothing them

in hair-cloth soaked in vinegar “to fetch off the skin,” &c. Another

woman was stripped naked, laid on a cold stone with a hair-cloth over

her, and thus kept for twenty-eight days and nights, being fed on bread

and water. The diarist who records this adds that “The judges are

resolved to inquire into the business, and have appointed the sheriff,

ministers, and tormentors to be found out, and to have an account of

the ground of this cruelty.”[1842] What result their humane efforts

obtained in this particular instance I have not been able to ascertain,

but the legal administration of torture was not abolished until after

the Union, when, in 1709, the United Parliament made haste, at its

second session, to pass an act for “improving the Union,” by which it

was done away with.[1843] Yet the spirit which had led to its abuse

could not be repressed by Act of Parliament, and a case is on record,

occurring in 1722, when a poor old woman in her dotage, condemned to

be burnt as a witch, actually warmed her withered hands at the stake

lighted for her destruction, and mumbled out her gladness at enjoying

the unaccustomed warmth.[1844]

CHAPTER X.

DECLINE OF THE TORTURE SYSTEM.

A system of procedure which entailed results so deplorable as those

which we have seen accompany it everywhere, could scarcely fail to

arouse the opposition of thinking men who were not swayed by reverence

for precedent or carried away by popular impulses. Accordingly, an

occasional voice was raised in denunciation of the use of torture.

Geiler von Kaisersberg, the most popular preacher of his time in

Germany, who died in 1510, endeavored to procure its disuse, as well

as to mitigate the cruelties practised upon prisoners.[1845] The

Spaniard, Juan Luis Vives, one of the profoundest scholars of the

sixteenth century, condemned it as useless and inhuman.[1846] The

sceptic of the period, Montaigne, was too cool and clear-headed not to

appreciate the vicious principle on which it was based, and he did not

hesitate to stamp it with his reprobation. “To tell the truth, it is a

means full of uncertainty and danger; what would we not say, what would

we not do to escape suffering so poignant? whence it happens that when

a judge tortures a prisoner for the purpose of not putting an innocent

man to death, he puts him to death both innocent and tortured....

Are you not unjust when, to save him from being killed, you do worse

than kill him?”[1847] In 1624, the learned Johann Gräfe, in his

_Tribunal Reformatum_, argued forcibly in favor of its abolition,

having had, it is said, practical experience of its horrors during

his persecution for Arminianism by the Calvinists of Holland, and his

book attracted sufficient attention to be repeatedly reprinted.[1848]

Friedrich Keller, in 1657, at the University of Strassburg, presented

a well-reasoned thesis urging its disuse, which was reprinted in 1688,

although the title which he prefixed to it shows that he scarce dared

to assume the responsibility for its unpopular doctrines.[1849] When

the French Ordonnance of 1670 was in preparation, various magistrates

of the highest character and largest experience gave it as their fixed

opinion that torture was useless, that it rarely succeeded in eliciting

the truth from the accused, and that it ought to be abolished.[1850]

Towards the close of the century, various writers took up the question.

The best known of these was perhaps Augustin Nicolas, who has been

frequently referred to above, and who argued with more zeal and

learning than skill against the whole system, but especially against it

as applied in cases of witchcraft.[1851] In 1692, von Boden, in a work

alluded to in the preceding pages, inveighed against its abuses, while

admitting its utility in many classes of crimes. Bayle, not long after,

in his Dictionary, condemned it in his usual indirect and suggestive

manner.[1852] In 1705, at the University of Halle, Martin Bernhardi

of Pomerania, a candidate for the doctorate, in his inaugural thesis,

argued with much vigor in favor of abolishing it, and the dean of the

faculty, Christian Thomas, acknowledged the validity of his reasoning,

though expressing doubts as to the practicability of a sudden reform.

Bernhardi states that in his time it was no longer employed in

Holland, and its disuse in Utrecht he attributes to a case in which a

thief procured the execution, after due torture and confession, of a

shoemaker, against whom he had brought a false charge in revenge for

the refusal of a pair of boots.[1853] His assertion, however, is too

general, for it was not until the formation of the Republic of the

Netherlands, in 1798, that it was formally abolished.[1854]

These efforts had little effect, but they manifest the progress of

enlightenment, and doubtless paved the way for change, especially in

the Prussian territories. Yet, in 1730, we find the learned Baron

Senckenberg reproducing Zanger’s treatise, not as an archæological

curiosity, but as a practical text-book for the guidance of lawyers

and judges. Meanwhile the propriety of the system continued to be

a subject of discussion in the schools, with ample expenditure of

learning on both sides.[1855] In 1733, at Leipzig, Moritz August Engel

read a thesis, which called forth much applause, in which he undertook

to defend the use of torture against the dictum of Christian Thomas

nearly thirty years before.[1856] The argument employed is based on the

theory of the criminal jurisprudence of the time, in which the guilt

of the accused is taken for granted and the burden thrown upon him

of proving himself innocent. Engel declares that in all well-ordered

States torture is rightfully employed; those who are innocent and are

the victims of suspicious circumstances have only themselves to blame

for their imprudence, and must make allowance for the imperfections

of human reason; and he airily disposes of the injustice of the

system by declaring that the State need not care if an innocent man

is occasionally tortured, for no human ordinance can be expected to

be free from occasional drawbacks. Another disputant on the same side

meets the argument that the different sensibilities of individuals

rendered torture uncertain, by boasting that in the Duchy of Zerbst the

executioner had invented an instrument which would wring a confession

out of the most hardened and robust.[1857] It was shortly after this,

however, that the process of reform began in earnest. Frederic the

Great succeeded to the throne of Prussia May 31, 1740. Few of his

projects of universal philanthropy and philosophical regeneration of

human nature survived the hardening experiences of royal ambition,

but while his power was yet in its first bloom he made haste to get

rid of this relic of unreasoning cruelty. It was almost his earliest

official act, for the cabinet order abolishing torture is dated

June 3d.[1858] Yet even Frederic could not absolutely shake off the

traditional belief in its necessity when the safety of the State or of

the head of the State was concerned. Treason and rebellion and some

other atrocious crimes were excepted from the reform; and in 1752, at

the instance of his high chancellor, Cocceji, by a special rescript,

he ordered two citizens of Oschersleben to be tortured on suspicion

of robbery.[1859] With singular inconsistency, moreover, torture in a

modified form was long permitted in Prussia, not precisely as a means

of investigation, but as a sort of punishment for obdurate prisoners

who would not confess, and as a means of marking them for subsequent

recognition.[1860] It is evident that the abrogation of torture did not

carry with it the removal of the evils of the inquisitorial process.

When the royal philosopher of Europe thus halted in the reform, it is

not singular that his example did not put an end to the controversy

as to the abolition of torture elsewhere. German jurisprudence, in

fact, was not provided with substitutes, and legists trained in the

inquisitorial process might well hesitate to abandon a system with

which they were familiar in order to enter upon a region of untried

experiment for which there was no provision in the institutions or the

ancestral customs of the land. These natural doubts are well expressed

by Gerstlacher, who, in 1753, published a temperate and argumentative

defence of torture. He enumerates the substitutes which had been

proposed by his opponents, and if he does them no injustice, the judges

of the day might naturally feel indisposed to experiments so crude and

illogical. It seems that the alternatives offered for the decision of

cases in which the accused could not be convicted by external evidence

reduced themselves to four—to dismiss him without a sentence either

of acquittal or conviction, to make him take an oath of purgation, to

give him an extraordinary (that is to say, a less) penalty than that

provided for the crime, and, lastly, to imprison him or send him to the

galleys or other hard labor, proportioned to the degree of the evidence

against him, until he should confess.[1861]

In Saxony, as early as 1714, an Electoral Rescript had restricted

jurisdiction over torture to the magistrates of Leipzig, to whom

all proceedings in criminal prosecutions had to be submitted for

examination prior to their confirmation of the decision of the local

tribunals to employ it.[1862] This must have greatly reduced the

amount of wrong and suffering caused by the system, and thus modified

it continued to exist until, in the remodelling of the Saxon criminal

law, between 1770 and 1783, the whole apparatus of torture was swept

away. In Austria the _Constitutio Criminalis Theresiana_, issued in

1769 by Maria Theresa, still contains elaborate instructions as to the

administration of torture, with careful descriptions and illustrations

of the implements in use and the methods of employing them;[1863] but

the enlightenment of Joseph II., soon after his accession in 1780, put

an end to the barbarism, and in Switzerland about the same time it was

similarly disused. In Russia, the Empress Catherine, in 1762, removed

it from the jurisdiction of the inferior courts, where it had been

greatly abused; in 1767, by a secret order, it was restricted to cases

in which the confession of the accused proved actually indispensable,

and even in these it was only permitted under the special command

of governors of provinces.[1864] In the singularly enlightened

instructions which she drew up for the framing of a new code in 1767,

the use of torture was earnestly argued against in a manner which

betrays the influence of Beccaria.[1865] Under these auspices it soon

became almost obsolete, and it was finally abolished in 1801. Yet, in

some of the States of central Europe, the progress of enlightenment was

wonderfully slow. Torture continued to disgrace the jurisprudence of

Würtemberg and Bavaria until 1806 and 1807. Though the wars of Napoleon

abolished it temporarily in other States, on his fall in 1814 it was

actually restored. In 1819, however, George IV. consented, at the

request of his subjects, to dispense with it in Hanover; while in Baden

it continued to exist until 1831. Yet legists who had been trained in

the old school could not admit the soundness of modern ideas, and in

the greater part of Germany the theories which resulted in the use

of torture continued to prevail. The secret inquisitorial process

was retained and the principle that the confession of the accused

was requisite to his condemnation. Torture of some kind is necessary

to render the practical application of this system efficacious, and

accordingly, though the rack and strappado were abolished, their place

was taken by other modes in reality not less cruel. When appearances

were against the prisoner, he was confined for an indefinite period

and subjected to all the hard usage to be expected from officials

provoked by his criminal obstinacy. He was brought up repeatedly

before his judge and exposed to the most searching interrogatories and

terrified with threats. Legists, unwilling to abandon the powerful

weapon which had placed every accused person at their mercy, imagined

a new justification for its revival. It was held that every criminal

owed to society a full and free confession. His refusal to do this was

a crime, so that if his answers were unsatisfactory to the judge the

latter could punish him on the spot for contumacy. As this punishment

was usually administered with the scourge, it will be seen that the

abolition of torture was illusory, and that the worst abuses to which

it gave rise were carefully retained.[1866] Indeed, if we are to

accept literally some letters of M. A. Eubule-Evans in the London

“Times” of 1872, the _Untersuchungschaft_ or inquisitorial process as

employed in Prussia to the present day lacks little of the worst abuses

recorded by Sprenger and Bodin. The accused while under detention is

subjected to both physical and moral torture, and is carefully watched

by spies. In the prison of Bruchsal there is a machine to which the

prisoner is attached by leather thongs passed around head, trunk, and

limbs, and drawn so tight that the arrested circulation forces the

blood from mouth and ears; or he is confined, perhaps for a week at a

time, in a small cell of which floor and sides are covered with sharp

wooden wedges, rivalling the fragments of potsherds which Prudentius

considered the crowning effort of devilish ingenuity for the torture of

Christian martyrs.

Spain, as may readily be imagined, was in no haste to reform the

ancient system of procedure. As late as 1796, in the Vice-royalty of

New Granada, when the spread of the ideas of the French Revolution

began to infect society, some pasquinades appeared in Santafé

displeasing to the government. Though the Viceroy Ezpeleta was regarded

as a singularly enlightened man, he had a number of persons arrested on

suspicion, one of whom was put to the torture to discover the author

of the obnoxious epigrams. It is satisfactory to know that although

several of the accused were convicted and sent to Spain to serve out

long terms of punishment, on their arrival at Madrid they were all

discharged and compensated.[1867] After the revolution, the authorized

use of torture was abolished, but as recently as 1879 its application,

by various methods showing skill and experience in its use, on an

American citizen falsely accused of theft, led to a correspondence

between the governments of Venezuela and the United States, recorded in

the journals of the time.

In the mother country the employment of torture, though becoming rarer

as the eighteenth century neared its end, continued legal until the

overthrow of the old monarchy, and it was not abolished until the

Cortes of Cadiz in 1811 revolutionized all the institutions of the

nation. In the reaction which followed the return of the Bourbons it

was not reinstated, but moderated appliances known as _apremios_—which

were sometimes as severe as the rack or the pulley—continued to be

used, especially in political offences, by the arbitrary despotism of

the Restoration.[1868]

Even France had maintained a conservatism which may seem surprising in

that centre of the philosophic speculation of the eighteenth century.

Her leading writers had not hesitated to condemn the use of torture.

In the _Esprit des Lois_, in 1748, Montesquieu stamped his reprobation

on the system with a quiet significance which showed that he had on

his side all the great thinkers of the age, and that he felt argument

to be mere surplusage.[1869] Voltaire did not allow its absurdities

and incongruities to escape. In 1765 he endeavored to arouse public

opinion on the case of the Chevalier de la Barre, a youthful officer

only twenty years of age, who was tortured and executed on an

accusation of having recited a song insulting to Mary Magdalen and of

having mutilated with his sword a wooden crucifix on the bridge of

Abbeville.[1870] He was more successful in attracting the attention

of all Europe to the celebrated _affaire Calas_ which, in 1761, had

furnished a notable example of the useless cruelty of the system.

In that year, at midnight of Oct. 13th, at Toulouse, the body of

Marc-Antoine Calas was found strangled in the back shop of his father.

The family were Protestants and the murdered man had given signs of

conversion to Catholicism, in imitation of his younger brother. A

minute investigation left scarcely a doubt that the murder had been

committed by the father, from religious motives, and he was condemned

to death. He appealed to the Parlement of Toulouse, which after a

patient hearing sentenced him to the wheel, and to the _question

ordinaire et extraordinaire_, to extract a confession. He underwent

the extremity of torture and the hideous punishment of being broken

alive without varying from his protestations of innocence. Though both

trials appear to have been conducted with rigorous impartiality, the

Protestantism of Europe saw in the affair the evidence of religious

persecution, and a fearful outcry was raised. Voltaire, ever on the

watch for means to promote toleration and freedom of thought, seized

hold of it with tireless energy, and created so strong an agitation

on the subject that in 1764 the supreme tribunal at Paris reversed

the sentence, discharged the other members of the family, who had

been subjected to various punishments, and rehabilitated the memory of

Calas.[1871] When Louis XVI., at the opening of his reign, proposed

to introduce many long-needed reforms, Voltaire took advantage of the

occasion to address to him in 1777 an earnest request to include among

them the disuse of torture;[1872] yet it was not until 1780 that the

_question préparatoire_ was abolished by a royal edict which, in a

few weighty lines, indicated that only the reverence for traditional

usage had preserved it so long.[1873] This edict, however, was not

strictly obeyed, and cases of the use of torture still occasionally

occurred, as that of Marie Tison at Rouen, in 1788, accused of the

murder of her husband, when thumb-screws were applied to both thumbs

and at the same time she was hoisted in the strappado, in which she was

allowed to hang for an hour after the executioner had reported that

both shoulders were out of joint, all of which was insufficient to

extract a confession.[1874] There evidently was occasion for another

ordonnance, which in that same year, 1788, was promulgated in order

to insure the observance of the previous one.[1875] In fact, when the

States-General was convened in 1879, the _cahier des doléances_ of

Valenciennes contained a prayer for the abolition of torture, showing

that it had not as yet been discontinued there.[1876] The _question

définitive_ or _préalable_, by which the prisoner after condemnation

was again tortured to discover his accomplices, still remained until

1788, when it, too, was abolished, at least temporarily. It was

pronounced uncertain, cruel to the convict and perplexing to the judge,

and, above all, dangerous to the innocent whom the prisoner might name

in the extremity of his agony to procure its cessation, and whom he

would persist in accusing to preserve himself from its repetition. Yet,

with strange inconsistency, the abolition of this cruel wrong was only

provisional, and its restoration was threatened in a few years, if the

tribunals should deem it necessary.[1877] When those few short years

came around they dawned on a new France, from which the old systems

had been swept away as by the besom of destruction; and torture as

an element of criminal jurisprudence was a thing of the past. By the

decree of October 9th, 1789, it was abolished forever.

In Italy, Beccaria, in 1764, took occasion to devote a few pages of

his treatise on crimes and punishments to the subject of torture, and

its illogical cruelty could not well be exposed with more terseness

and force.[1878] It was probably due to the movement excited by this

work that in 1786 torture was formally abolished in Tuscany. In

this the enlightened Grand-duke Leopold was in advance of his time,

and the despots who ruled the divided fractions of the peninsula,

although they might be willing to banish torture from ordinary criminal

jurisprudence, had too well-grounded a distrust of the fidelity of

their subjects to divest themselves of this resource in the suppression

of political offences. Hardly had the Bourbons, after the overthrow

of Napoleon, been reseated on the throne of the Two Sicilies when the

restless dissatisfaction of the people seemed to justify the severest

measures for the maintenance of so-called order. The troubles of 1820

led to arming the police with exceptional and summary jurisdiction,

under which it deemed itself authorized to employ any methods requisite

to detect and punish conspirators. This continued until the revolution

of 1848 aggravated the fears of absolutism, and from its suppression

until the expedition of Garibaldi the régime of the Neapolitan

dominions was an organized Terror. Grave as we have seen were the

abuses of torture when systematized in the detection of crime, they

were outstripped by the licensed cruelty of the ex-galley slaves of

the Neapolitan police, who were restrained by no codes or rules of

practice, and were eager to demonstrate their zeal by the number of

their victims. The terrible secrets of the dungeons of Naples and

Palermo may never see the light, but enough is known to show that

they rivalled those of Ezzelin da Romano. Police agents competed in

inventing new and hideous modes of inflicting pain. Neither age nor

sex was spared. In one case an old man and his daughter, five months

gone in pregnancy, died under the lash. If a suspected man took alarm

and fled, his mother or his wife and daughters would be tortured to

discover his hiding-place. The evil records of the dark ages have

nothing to show more brutal and inhuman than the application of torture

in Naples and Sicily in the second half of the nineteenth century.[1879]

That the mortal duel between autocracy and Nihilism in Russia should

lead to the employment of torture in unravelling the desperate

conspiracies of the malcontents is so natural that we may readily

accept the current assertions of the fact. The conspirators are said

frequently to carry poison in order, if arrested, to save themselves

from endless torment and the risk of being forced to betray associates,

and the friends of prisoners spare no effort to convey to them some

deadly drug by means of which they may escape the infliction. Polish

aspirations for liberty are repressed in the same manner, and in 1890

the journal’s recorded the case of Ladislas Guisbert, rendered insane

by the prolonged administration of Marsigli’s favorite torment of

sleeplessness.

So long as human nature retains its imperfections the baffled

impatience of the strong will be apt to wreak its vengeance on the

weak and defenceless. As recently as 1867, in Texas, the Jefferson

“Times” records a case in which, under the auspices of the military

authorities, torture was applied to two negroes suspected of purloining

a considerable amount of money which had been lost by a revenue

collector. More recently still, in September, 1868, the London journals

report fearful barbarities perpetrated by the Postmaster-General of

Roumania to trace the authors of a mail robbery. A woman was hung to a

beam with hot eggs under the armpits; others were burned with grease

and petroleum, while others again were tied by the hair to horses’

tails and dragged through thorn bushes. It must be added that the

offending officials were promptly dismissed and committed for trial. A

still more recent case is one which has been the subject of legislative

discussion in Switzerland, where it appears that in the Canton of Zug,

under order of court, a man suspected of theft was put on bread and

water from Oct. 26th to Nov. 10th, 1869, to extort confession, and when

this failed he was subjected to thumb-screws and beaten with rods.

* * * * *

In casting a retrospective glance over this long history of cruelty and

injustice, it is saddening to observe that Christian communities, where

the truths of the Gospel were received with unquestioning veneration,

systematized the administration of torture with a cold-blooded ferocity

unknown to the legislation of the heathen nations whence they derived

it. The careful restrictions and safeguards, with which the Roman

jurisprudence sought to protect the interests of the accused, contrast

strangely with the reckless disregard of every principle of justice

which sullies the criminal procedure of Europe from the thirteenth to

the nineteenth century. From this no race or religion has been exempt.

What the Calvinist suffered in Flanders, he inflicted in Holland; what

the Catholic enforced in Italy, he endured in England; nor did either

of them deem that he was forfeiting his share in the Divine Evangel of

peace on earth and goodwill to men.

The mysteries of the human conscience and of human motives are

well-nigh inscrutable, and it may seem shocking to assert that these

centuries of unmitigated wrong are indirectly traceable to that

religion of which the second great commandment was that man should

love his neighbor as himself. Yet so it was. The first commandment, to

love God with all our heart, when perverted by superstition, gave a

strange direction to the teachings of Christ. For ages, the assumptions

of an infallible Church had led men to believe that the interpreter

was superior to Scripture. Every expounder of the holy text felt in

his inmost heart that he alone, with his fellows, worshipped God as

God desired to be worshipped, and that every ritual but his own was

an insult to the Divine nature. Outside of his own communion there

was no escape from eternal perdition, and the fervor of religious

conviction thus made persecution a duty to God and man. This led the

Inquisition, as we have seen, to perfect a system of which the iniquity

was complete. Thus commended, that system became part and parcel of

secular law, and when the Reformation arose the habits of thought which

ages had consolidated were universal. The boldest Reformers who shook

off the yoke of Rome, as soon as they had attained power, had as little

scruple as Rome itself in rendering obligatory their interpretation

of divine truth, and in applying to secular as well as to religious

affairs the cruel maxims in which they had been educated.

Yet, in the general enlightenment which caused and accompanied the

Reformation, there passed away gradually the passions which had

created the rigid institutions of the Middle Ages. Those institutions

had fulfilled their mission, and the savage tribes that had broken

down the worn-out civilization of Rome were at last becoming fitted

for a higher civilization than the world had yet seen, wherein the

precepts of the Gospel might at length find practical expression and

realization. For the first time in the history of man the universal

love and charity which lie at the foundation of Christianity are

recognized as the elements on which human society should be based.

Weak and erring as we are, and still far distant from the ideal of

the Saviour, yet are we approaching it, even if our steps are painful

and hesitating. In the slow evolution of the centuries, it is only by

comparing distant periods that we can mark our progress; but progress

nevertheless exists, and future generations, perhaps, may be able to

emancipate themselves wholly from the cruel and arbitrary domination of

superstition and force.

INDEX.

Aames II., story of, 260

Abbeys, champions of, 197

Abbo of Fleury claims exemption from ordeal for clerics, 414

Abelard and Heloise, legend of, 364

Aben Ezra on water of golden calf, 262

_Abiadiong_, or sorcerer, 254

Abingdon, Abbey of, uses ordeal of chance, 356

the black cross of, 373

Abraham, covenant of, 27

exposed to fire ordeal, 303

Abraham of Freisingen takes ordeal of Eucharist, 348

Absolution for use of torture, 485

secures escape in ordeal, 402

Abuse of the ordeal, 405, 417

of power by judges, 545

of torture under Wisigoths, 461

by modern judges, 539

Accessories of oaths, 29

Accomac County, Va., case of bier-right, 366

Accomplices, the weakest tortured first in Rome, 448

in Spain, 463

in Germany, 543

evidence not used against in Rome, 443, 445

in England, 563

received in Wales, 564

torture to discover, in Inquisition, 484

in France, 515, 517, 584

in Germany, 546

in Denmark, 562

in Massachusetts, 570

Accusation withheld from accused, 514

Accusations, repeated, 45

Accusatorial conjurators, 94

in France, 94

in England, 95

in Béarn, 96

in Germany, 96, 97

in Northern kingdoms, 97

in Vehmgericht, 99

Accusatorial ordeals, 389

Accused (see also _Defendant_),

advantage of compurgation to, 62

allowed to present a warrantor, 121

entitled to duel though guilty, 131

obliged to accept the duel, 140, 141, 143

his right of election, 144

swears to his innocence, 166

allowed choice of weapons, 177

selects the ordeal, 292

obliged to submit to the ordeal, 383

compounding for the ordeal, 384

fined if his adversary escapes in the ordeal, 384

can demand ordeal, 387

counsel denied to, by Inquisition, 486

in France, 517

allowed counsel in Castile, 469

in Germany, 544

hearing allowed him, 518

refused a hearing, 547

entitled to see adverse testimony in Castile, 468

in Italy, 507

in Valtelline, 508

in France, 504, 512

evidence refused him in France, 514

in Germany, 544

held responsible for torture, 532

torture of witnesses against absent, 542

confrontation with accuser, 545

tortured after conviction, 545, 546

absolved by retraction of confession, 550

after acquittal pays expenses, 552

Damhouder’s advice to, 553

not to be chained in England, 565

Accuser (see also _Appellant_, _Plaintiff_),

selects the conjurators, 48, 49

onus of proof on, 74, 272

obliged to accept the duel, 140, 141

not obliged to accept duel, 143

his right to demand duel, 144, 145

allowed choice of weapons, 176

selects the ordeal, 291

fined if accused escapes in the ordeal, 384

defeated, ordeal for, 385

guilty of perjury, 386

can demand ordeal, 386

ordeal for, 389

must be present at ordeal, 405

subject to _talio_ in Rome, 440, 445

under Wisigoths, 459

must inscribe himself in Rome, 440, 446

his responsibility for torture under Wisigoths, 458, 460

relieved of responsibility in inquisitorial process, 513

confrontation with accused, 545

Accusers, limitation of, in China, 122

fire ordeal used by, 305

Achan, case of, 262

Acquittal usual in ordeal, 406

in ordeal, fees for, 416

accused pays expenses after, 552

Adalbert, St., power of his intercession, 377

Adalger at Council of St. Baseul, 395

Adaulfus of Compostella, legend of, 372

Admiralty courts, duel not admitted by, 165

Adrian, his restrictions on torture, 446

his estimate of torture, 446

Adrian II. administers ordeal of Eucharist, 349

Adulteress, escape of, in ordeal, 402, 403

Adultery, accusation of, in Wales, 45

accusation of, in the Koran, 46

compurgation prescribed for, 87

ordeal for, 413

in China, 253

torture for, in Rome, 439, 448

under Wisigoths, 460

torture of partners in, 551

evidence of slave received in Rome, 444

Adurabad, ordeal of, 267

Advocates, use of, 70

exempt from torture in Castile, 467

must testify against clients in witch-trials, 555

of churches, 198

Advowson, origin of, 198

_Æneum_, 278

_Affaire Calas_, 584

_Afia-ibnot-idiok_, 254

_Afia-edet-ibom_, 254

Africa, ordeals in, 254

Agde, council of, in 508, condemns the _sortes sanctorum_, 354

Age, compurgation as privilege of, 57

minimum, liable to duel, 141

subject to torture in Rome, 446

in Spain, 463, 466

in Germany, 527

advanced, exempted in Germany, 527

Agobard, St., denounces the duel, 206

on confusion of laws, 275

his tracts against ordeals, 409

cold-water ordeal unknown to, 321

Ahyto, Bishop, prescribes the ordeal, 409

Ainos of Japan, duel among, 108

ordeals used by, 253

Aix-la-Chapelle, merchants exempt from duel, 204

council of, 816, prohibits ordeal of cross, 338

Alamanni, Laws of—

selection of compurgators, 43

compurgation for murder, 52

formula of compurgation, 60

perjury of compurgators, 63

judicial duel in, 113, 119

fine for defeated combatant, 167

kinsmen as champions, 180

Albenga, conviction by ordeal at, 418

Albero of Mercke, ordeal refused to, 418

Albert I. substitutes compurgation for the duel, 81

Albertus de Gandino, his work on torture, 525

Albertus Magnus, his recipe against fire, 408

Alby, Council of, 1254, denies counsel to accused, 487

Alcalá, Ordenamiento de, on the duel, 216

Alexander I. (Pseudo) on extorted confessions, 478

Alexander II. forbids ordeal of Eucharist, 369

denounces the ordeal, 414

Alexander III. forbids duel to clerics, 156, 207

on extortion in ordeals, 417

prohibits the ordeal, 417

secures confession by deceit, 559

Alexander I. (Scotland), his charter to Scone, 162

Alexander II. (Scotland) on use of champions, 192

restricts ordeals, 421

Alexander the slave, his torture, 447

Alexander of Constantinople, case of, 379

Alexis Mikhailovich abrogates the duel, 239

Alfin, his duel with Olaf Trygvesson, 115

Alfonso VI. (Castile) introduces Roman ritual, 132

Alfonso VII. undergoes compurgation, 67

Alfonso X. introduces the _jure de juicio_, 22

rejects negative proofs, 74, 425

his charter to Treviño, 202, 424

restricts the duel, 214

his regulation of torture, 462

Alfonso XI. allows accused to see testimony, 468

duel ordered by, 215

his regulations of the duel, 216

Aliprandus of Milan on punishment of conjurators, 64

_Alltud_, 39

Alphonse of Poitiers, his charter to Riom, 203

to Auzon, 490

Alsace, cold-water ordeal for slaves, 322

Altars, oaths on, 28

Alternative numbers of conjurators, 43

Altoviti and Gaddi, duel of, 236

_Althing_, or Icelandic assembly, 18

Ambassadors, champions necessary to, 129

America, appeal of death in, 246

compurgation in, 88

bier-right in, 366

torture in, 569

_peine forte et dure_ in, 575

Amiens, bailli of, compurgation prescribed for, 77

duel restricted in, 201

nobles of, claim the duel, 227

torture of clerics in, 491

Amsterdam deprived of its headsman, 536

exile for retracted confession, 549

use of torture in 1803, 578

Amula of Modena, story of, 293

Andernach, battle of, 400

André de Trahent, case of, 397

Andreas of Lunden regulates fees for ordeal, 416

Andres, founding of abbey of, 316

Andrew, St., his lance tested by ordeal, 308

Angelo da Chiavasco describes compurgation, 92

his allusion to ordeals, 425

Angli & Werini, laws of—

judicial duel in, 114

limit of duel, 147

kinsmen as champions, 180

ordeal of red-hot iron, 291

Anglican Church, compurgation in, 93

Anglo-Saxons, compurgation for injuries, 17

classification of oaths, 24

reduplicated oaths, 28

rules for compurgation, 46, 48

_juramentum supermortuum_, 55

oath of compurgators, 58

_overcythed_, 61

_forath_, 95

judicial duel not used, 114

ordeals in suits with Welsh, 276

use of hot-water ordeal, 283

of red-hot iron ordeal, 287

accuser selects the ordeal, 291

the dead cleared by ordeal, 294

formula for cold-water ordeal, 318

use of cold-water ordeal, 322

triple ordeal for sorcery, 326

corsnæd for clerics, 341

Eucharist for clerics, 348

ordeal of the lot, 353

enforcement of ordeal, 383

compounding for the ordeal, 384

accuser can demand ordeal, 386

ordeal for all suspects, 489

in failure of compurgation, 390

for perjurers and convicts, 392

prevention of collusion in ordeal, 405

Anjou, hired champions allowed, 193

Anselm and the sacred vessels of Laon, 136, 324, 474

_Antejuramentum_, 95

Antioche, Assises d’, 143

Antonino, St., his allusion to ordeals, 425

Antoninus Pius orders torture of slaves in civil suits, 441

rejects evidence of accomplices, 445

Antrustions, hot-water ordeal for, 323

Apollonius of Tyana, his power, 447

Appeal of death, 242

in Massachusetts, 245

in Maryland, 247

abolished, 246

Appeals determined by duel, 123

from feudal courts, 473

denied to villeins, 491

from sentence of torture in Castile, 465, 467

in France, 514

in Germany, 545

refused, 547

from conviction, torture to prevent 546

after conviction, torture to prevent, 552

Appellant (see also _Accuser_).

selects conjurators, 48, 49

his right to demand duel, 144

swears to justice of his cause, 166

punishment of defeated, 167

for default, 173

allowed choice of weapons, 176

use of champions by, 181

Approvers, 175, 243

_Apremios_, 583

Aquitaine, torture resisted in, 498

Aquinas on duel and ordeal, 209

_Ara maxima_, the, 27

Arabs, ordeal among the, 264

Aragon, limit of value for duel, 148

duels between Christians and Saracens forbidden, 151

duel prohibited, 214

bier-right in, 366

ordeals prohibited, 424

torture restricted in, 462, 469

Arcadius and Honorius on exemption of decurions, 438

Arckel, Jan van, his duel, 104

Ardennes, ordeal of staff in, 397

Arducius, Bishop of Geneva, 162

Arezzo, Bishop of, grants the duel, 161

admits champions in a duel, 189

Argenton, Seigneur d’, subjected to torture, 499

Argentré, Bertrand d’, accepts bier-right, 366

on preliminary proof, 515

Arian, ordeal to convert an, 296

defeated by hot-water ordeal, 279

worsted by fire ordeal, 304

relics tested by fire, 315

Aristogiton, torture of, 433

Aristotle quoted for bier-right, 359

Arius, death of, 379

Armagnac, Count of, his duel, 222

challenges Foix, 225

Arms of witnesses blessed at altar, 120

choice of, in duel, 176

coats of, duels concerning, 105

Arnoul of Flanders offers the ordeal, 294

Arnoul, St., his relics tested with fire, 316

Arnustus, his death, 343

Arques, punishment of murder in, 13

restriction on duel in, 203

Arras, ordeal of fire at, 310

Bishop of, uses ordeal for heretics, 411

council of, 1025, tortures heretics, 474

Aryans, social organization of, 13

the duel a custom of, 108

ordeal among, 265

use of torture among, 431, 432

Ashantee, poison ordeal in, 255

Ashford _vs._ Thornton, case of, 246

Askew, Ann, torture of, 568

Aspres, customs of, 19

Assizes of Clarendon order cold-water ordeal, 322, 388, 400

Assyria, use of imprecations in, 260

use of torture in, 430

Astesanus on oaths, 30

condemns the ordeal system, 420

Astin of Wispington, case of, 389

Astyages, his use of torture, 431

Atharva Veda, allusion to ordeals in, 267

_Athia_, 147

Atto of Vercelli objects to compurgation, 37

denounces the duel, 128

on clerical liability to duel, 155, 157

Audefroy le Bâtard, ballad by, 68

Augsburg, duel in 1409, 172

Augustin, St., on oaths on relics, 31, 372

favors the lot, 352

condemns torture, 477, 576

Augustus tortures Q. Gallius, 435

his opinion of torture-evidence, 441

Ausch, Council of, 1068, confirms the ordeal, 410

Australia, duel among aborigines, 108

Austria, case of bier-right in, 364

torture of page of Richard I., 474

abolition of torture, 580

Dukes of, allowed champions, 134

Auxerre, relics of St. Martin at, 380

Auzon, charter of, exempts from torture, 490

_Avantparlier_, 70

Aventinus on judgment of God, 102, 426

Avesta, responsibility of kindred in, 14

ordeal prescribed by the, 265

Avitus, St., denounces the duel, 206, 409

his dispute with the Arians, 379

_Avoués_ of churches, 198

Ayesha accused of adultery, 46

Aymar, Jacques, 427

Aztecs, oath ordeal among, 259

Bacon, Francis, recommends torture, 568

Bacon, Roger, admits virtue in ordeals, 424

Baden, torture abolished, 581

Baglioni, lord of Spello, grants the duel, 236

_Bahr-recht_, 359

Bail required of combatants, 173

liability of, 174

Baioarian law—

admission of compurgation, 53

witnesses and conjurators, 62

accusatorial conjurators, 94

challenge of witness, 103

judicial duel, 113, 119

minimum limit for duel, 147

champions always used, 181

use of ordeal, 274

torture of slaves, 452

Bajazet, his method of investigation, 576

Balance, ordeal of, 334

used in witchcraft cases, 335

Balbás, Fuero of, compurgation in, 34, 49

Bâle, council of, denounces abuse of oaths, 23

Baldus de Periglis, his work on torture, 525

Baldwin VII. (Flanders) his charter to Ypres, 48, 201

Bands of iron used as an ordeal, 377

Banishment after success in ordeal, 401

Bankruptcy cases, torture used in, 530

Baptista de Saulis describes compurgation, 93

his allusion to ordeals, 425

Barbarian laws, personal not territorial, 131, 275, 453

rest on negative proofs, 73

accusatorial conjurators, 94

judicial duel, 112

use of champions, 180

ordeal of the lot, 353

no trace of bier-right, 359

use of torture, 449

corporal punishment unknown, 451

torture of slaves, 451

Barbarians, the, their jurisprudence, 16

lack of confidence in oaths, 24

universal use of compurgation, 34

general use of ordeal, 275

cold-water ordeal not used, 320

Barberousse punished for suspicion, 521

Barcelona, council of 599, prescribes the lot, 355

Bari exempted from duel and ordeal, 201

Barker, Janet, case of, 571

Barriller and Carrington, duel of, 231

Bastards, their right to the duel, 140

Battle, Wager of, 101

Battoon, the, for duels, 176

Bavaria, torture in, 473

torture abolished, 581

Bavarian house of Guelf, founding of, 133

Bayle, Peter, condemns torture, 577

Béarn, selection of compurgators, 51

formula of compurgation, 58

compurgation retained, 79

accusatorial conjurators, 96

duel between prince and subject, 135

limitations on duel, 145

penalty for defeat in duel, 168

for default in duel, 174, 233

use of champions, 194

duel legal till 1789, 232

hot-water ordeal, 283

red-hot iron ordeal, 295

cold-water ordeal, 323

torture not used in, 487

Beaulieu, Abbey of, its jurisdiction, 161

Beaumanoir, silence as to compurgation, 75

limitations on duel, 140

on punishment of defeated champion, 185

his opinion of the duel, 221

rejects negative proofs, 74

no reference to torture, 488

Beauvais, champion of, 196

Beccaria on torture, 516, 546, 549, 586

Belfast, relic of St. Patrick at, 374

Belgium, witches tried by ordeal in 1815, 323

Belief, compurgators only swear to, 71

Benares, ordeal in 1783, 284, 290

Bera and Sanila, duel of, 117

opposition excited by it, 206

Berkeley, Abbey of, 40

Bermuda, compurgation in, 87

Bernard, St., on study of Roman law, 73

Bernard, St.—

approves of ordeal for heretics, 410

Bernard Gui complains of restrictions on torture, 511

Bernard of Italy, his rebellion, 470

Bernard VI. of Armagnac, 203

Bernhardi, Martin, opposes torture, 577

Berthaut Lestalon, case of, 501

Bertin, St., power of his intercession, 378

Bertrand, St., of Comminges, his improvised ordeals, 285, 374

Bertulf of Bruges, case of, 152

Béziers, council of, 1255, 490

Bible and key, ordeal of, 357

Bibliomancy, 335

Bier-right, 359

explanations of it, 369

weight of its evidence, 370

influence of imagination, 396

Biers placed in the lists, 172

Bignon, Jerome, on cold-water ordeal for witchcraft, 330

Bigorre, conjurators in, 43

exemption of widows from duel, 146

hired champions, 195

duel not obligatory, 202

profits of ordeals, 415

Bilateral ordeals, 249

ordeal of cross, 336

in Tibet, 269

Binsfeld on cold-water ordeal in witchcraft, 327

Bishops, oaths taken on hand of, 30

number of conjurators for, 43

select compurgators for clerics, 51

decree duels in their courts, 162

selected by the lot, 355

fitness determined by ordeal, 410

their profits from ordeals, 416

their unrestricted power to torture, 511

Spanish, their privilege in swearing, 36

Bitter water, ordeal of, 262

Blind, the, torture of, 528

Blois, assembly of notables in 1498, 513

Blondel, Geoffrey, a salaried champion, 196

Blood swallowed as an ordeal in India, 258

in Greece, 270

Blood-money (see _Wer-gild_).

Bobenzan, Dr., his torture, 526

Boccaccio’s story of Calendrino, 341

Boden, von, opposes abuses of torture, 577

Bodin on cold-water ordeal in witchcraft, 327

urges punishment for suspicion, 519

approves deceit in witch-trials, 559

Boguet complains of uselessness of torture, 558

disapproves deceit in witch-trials, 559

Bohemia, judicial duel used, 110

duels of women, 153

universal use of ordeals, 274

iron bands to punish fratricide, 377

compounding for the ordeal, 384

ordeal for all suspects, 388

in prohibited marriages, 410

fees for ordeals, 416

use of torture, 473, 476

Bohemian Brethren use the lot, 355

Bologna, regulation of champions, 195

torture in cases involving fines, 529

Bones, bleeding, murder revealed by, 364

Boniface, St., on perjury of compurgators, 63

Boniface converts Russia by an ordeal, 310

Bonifazio de’ Vitaliani, his work on torture, 525

Bonuszeno of Soavo, 196

Books tested by fire ordeal, 313, 314

Boot, torture of, 573

Bordeaux, oath of plaintiff in, 98

bier-right in, 366

torture resisted in, 498

Borneo, ordeals in, 257

_Borru_, ordeal of, 256

Bothwell, his offers of the duel, 240

Bourbons of Naples, their use of torture, 587

Bourges, torture of Jews in, 492

Bourges, Nicholas, case of, 492

Bowgas, Margery, cleared by compurgation, 92

Boys with greased boots detect witches, 539

Bracton on use of compurgators, 71, 84

ordeals obsolete in his time, 421

knows nothing of torture, 564

Brahm, F. M., on water ordeal for witches, 331

Brahman caste, oaths prescribed for, 25

hot-water ordeal for, 284

ordeal of balance for, 334

their presence required at ordeals, 269, 280

Brant, N., water ordeal for witches, 331

Bread and cheese, ordeal of, 339

Brehons, inspiration of, 272

Bribes in ordeal, 406

Brice, St., his ordeal, 304

Bridewell, the, torture used in, 569

Britanny, accusatorial conjurators in, 99

duel permitted till 1539, 231

bier-right in, 366

charter of 1315, 495

use of torture, 504

responsibility of judges for torture, 515

Brothers, duel between, 141, 218

Brown and Hepburn, duel of, 240

Bruchsal, torture in prison of, 582

Bruges, duel prohibited in, 203

ordeal at choice of accused, 387

for convicts, 392

witch-trial in, 567

Bruntfield and Carmichael, duel of, 240

Brunnemann on facilities for defence, 547

Brzetislas, ordeal in his laws, 274

Buda, Council of, 1279, prohibits ordeals, 423

Buddha, his relic tested by fire, 314

Buddhism, its influence in China, 252

accepts the ordeal, 269

Bulgaria, survival of the duel, 239

use of torture in, 478

Bull’s blood, ordeal of, 270

Burchard, Bishop of Chartres, subjected to ordeal, 410

Burckardt of Worms on the ordeal, 392, 410

Burgmeister on water ordeal for witches, 329, 331

Burgundian law, kindred as compurgators, 50

judicial duel, 112, 119

champions unusual, 181

witnesses must be of same race, 275

torture of slaves, 451

Burgundy, nobles of, claim the duel, 227

duel abolished by Philippe le Bon, 231

ordeal for witches in 17th century, 331

bier-right in, 366

charter of, 1315, 495

Burial alive, women punished by, 153, 503

Burke defends the appeal of death, 246

Burning for refusal of ordeal, 411

Burnt Njal, saga of, 17

Byzantine Empire, ordeal used in, 277, 299, 304, 313

_Cacabus_, 278

Cachielawis, torture of, 573

Cadiz, Córtes of, abolishes torture, 583

Cæsarism, extension of torture by, 435

Cæesarius of Heisterbach, his theory of ordeal, 402

on ordeal for heretics, 411

Cæsarius of Königswinter, case of, 374

Cagots as conjurators, 43

Cain and Abel, their duel, 107

Calas, case of, 584

_Caldaria_, 278

Calendrino, story of, 341

Caligula, his relish for torture, 436

Calixtus II. approves of ordeal, 412

Cambrai, heretics convicted by ordeal, 297

Campetti, his use of divining-rod, 428

Campion, Jesuit, his torture, 569

Canon law on perjury, 30

adopts compurgation for heretics, 36

Canonical compurgation, 33

Canute, his laws on compurgation, 48

Cappadocians hardened to torture, 558

Caracalla allows torture for poisoning, 439

of slaves in adultery cases, 444

Caraffa, Cardinal, his trial, 541

Cardigan, holy taper of, 32

Cardone, Raymond de, challenges Armagnac, 225

Carena on bier-right, 359

his explanation of it, 369

Carlovingian law—

selection of compurgators, 50

admission of compurgation, 53

punishment of compurgators, 64

accusatorial conjurators, 95

judicial duel proscribed, 113, 118

challenging of witnesses, 120

liability of ecclesiastics, 155

penalty for defeat in duel, 167

for defeated champion, 184

robbers not to serve as champions, 186

reliance on judgment of God, 250

red-hot iron ordeal, 291

cold-water ordeal, 322

ordeal of cross, 336

in failure of compurgation, 390

for ill-repute, 392

as a punishment, 393

confidence reposed in the ordeal, 399

use of chrism in ordeal, 407

of torture, 469

Carlos, Don, his torture, 468

Carmichael and Brentfield, duel of, 240

Caroline Constitutions, torture in, 522

adopted in 1532, 524

Carpzov on the evidence of bier-right, 370

denies appeal from sentence of torture, 545

Carrington and Bariller, duel of, 231

Carrouges and le Gris, duel of, 229

Carter, Paul, bier-right in case of, 366

Casimir III. (Poland) regulates compurgation, 83

forbids inquisitorial process, 509

Casimir IV. (Poland) restricts compurgation, 83

Castelnau, Sire de, offers the duel, 233

Castile, purgatorial oaths, 24

compurgation in, 80

Mozarabic rite defended by duel, 132

by fire ordeal, 313

duels only permitted between gentlemen, 151

use of champions restricted, 195

duel restricted, 214

bier-right, 366

ordeals prohibited, 424

use of torture in, 462

Catalonia, limitation on duels, 146

Truce of God enforced by the ordeal, 323

Cathari, ordeal used to convict, 411

Catherine II. restricts torture, 581

Catholics tortured under Elizabeth, 568

Cats, use of, in torture, 554

Caussade, Raymond de, challenged by Thomas Felton, 229

Caussois, Gervaise, case of, 501

Cautinus of Auvergne uses ordeal of Eucharist, 348

Celestin III. on perjury of compurgators, 64

forbids clerical duels, 158, 207

Celtiberians, judicial duel among, 108

Celts, solidarity of the family among, 15

judicial duel among, 108

ordeals used by, 272, 273

Cemeteries, duels forbidden in, 209

Centulla I., his charter to Lourdes, 202

Centulla IV., employs the ordeal, 295

Ceremonial of compurgation, 60

Calchuth, council of, condemns the lot, 353

Chaldea, use of imprecations in, 260

Challenging of witnesses, 103, 120

of judges, 123

Champagne, nobles of, claim the duel, 227

cold-water ordeal for witchcraft, 330

resistance to torture, 496

Champion of England, the, 134

Champions, 179

put forward as warrantors, 121

denied to witnesses, 121

of ambassadors, 129

allowed to Dukes of Austria, 134

used to convict thieves, 135

oath of, 139

in duels of different ranks, 150

supplied by the State, 152

allowed to clerics, 157

defeated, penalties of, 168, 184

as witnesses, 182

disabilities incurred by, 187

restrictions on their employment, 189

hiring of, 190, 193

equalization of, 194

of towns, 196

of churches, 197

in ordeals, 295, 337, 390, 398, 400

Chance in selection of compurgators, 49

ordeal of, 352

in China, 253

in Borneo, 257

in Rajmahal, 259

Charlemagne tries Leo III., 35

on number of conjurators, 43

urges use of judicial duel, 118

prohibits duel between his heirs, 127

his duel with Witikind, 130

cold-water ordeal ascribed to, 321

favors ordeal of cross, 337

on iron bands for parricide, 378

his confidence in the ordeal, 399

on use of chrism in ordeal, 407

orders buildings for the _mallum_, 471

torture for sorcerers, 470

Charles le Chauve attacks Louis of Saxony, 400

Charles IV. (Emp.) interferes with duels of Bishop of Liége, 160

his charter to Worms, 205

torture in his Golden Bull, 504

Charles V. (Emp.) prescribes compurgation, 81

challenges Francis I., 106

duel ordered by, 216

on sentences of torture, 467

his laws on torture, 522

Charles V. (France) alludes to compurgation, 77

Charles VI. (Fr.) limits the duel, 230

admits women as witnesses, 228

Charles IX. (France), edict against duels, 104, 235

Charles I. (England) tries to prevent duel, 244

Charles XI. (Sweden) restricts compurgation, 83

Charles of Anjou challenges Pedro of Aragon, 105

prohibits the ordeal, 422

Charles de Valois, his use of torture, 494

Charles the Good, of Flanders, his murder, 152, 474

Charles the Bold tries to prevent duel, 232

Charms forbidden in duels, 139

in ordeals, 407

use of, against torture, 556, 557

Charteris and Douglass, duel of, 239

Charters exempting from duel, 200

of prelates granting jurisdiction of ordeal, 412

Chartres, council of, sanctions ordeal, 412

Chassanée accepts bier-right, 366

Chastity tested by fire ordeal, 304

Chateaudun, church of, its interest in ordeals, 415

Château-Neuf, case of torture in, 493

Châtelet of Paris, its use of torture, 493, 500

Cheese, ordeal of, 339

_Cherleman_, 47

_Cherreen_, ordeal of, 259

Children, responsibility for, 20

as substitutes in ordeals, 398

their evidence received in witch-trials, 554

not subject to torture in Rome, 446

in Spain, 463, 466

in Germany, 527

Chimpanzee skull used in ordeal, 254

China, redemption of punishment, 122

freedom from superstition, 251

torture not used, 431

Chindaswind prohibits Roman law among Goths, 458

his regulation of torture, 460

Chivalry, duels of, 242

Choice of conjurators made by sheriff, 48

by plaintiff, 48, 49

by court, 49

by judge, 51

by defendant, 57

of weapons in duel, 176

Chrism, use of, in ordeal, 407

Christ, his swaddling-cloth tested by fire, 315

Christian burial, ordeal prerequisite to, 412

Christianity, its influence on torture in Rome, 444

Christians, their torture in Rome, 436

Christiern IV. abolishes compurgation, 82

Christiern V. prohibits compurgation, 82

restricts use of torture, 562

Church, the, supersedes family ties, 19, 35

favors the use of oaths, 22

its teachings as to perjury, 30

its profits in administering oaths, 32

adopts compurgation, 35

degree of confidence in compurgation, 61

it modifies the compurgatorial oath, 71

disabilities imposed on women, 122

deprived of exemption from duel, 131

its secular jurisdiction, 161

its champions, 197

its opposition to duel, 206

its perplexities as to the duel, 211

influence in favor of ordeal, 276

does not favor the lot, 352

its relations with the ordeal, 408, 409

its opposition to the papacy, 415

its condemnation of torture, 471, 477

extorted confession invalid, 478

adopts use of torture for heresy, 484

adopts the _talio_, 169, 513

Churches, oaths taken in, 29

champions of, 197

local, their interest in ordeals, 415

Cicero, his estimate of torture, 447

Cid, the, requires compurgation of Alfonso VI., 68

Ciruelo on Eucharist ordeal, 351

his theory of ordeals, 403

_Cin_, 18

Citizenship in Rome, 440

Civil cases, champions required for, 192, 193

ordeal in, 385

lack of testimony requisite for ordeal, 387

torture of slaves in, 433, 441

torture used in, 530

Clarendon, Assizes of, ordeal for all suspects, 388

disbelief in ordeal, 400

Class-privileges as to oaths, 24

in compurgation, 57

Claudia Quinta, her ordeal, 271

Claudius, his relish for torture, 436

swears not to torture freemen, 439

Claxton _vs._ Lilburn, case of, 244

Clement III. forbids clerics to fight, 156

Clement V. forces torture of Templars, 511

Clergy, the, sustain the ordeal, 417

Clerics, their _wer-gild_, 20

purgatorial power of their oaths, 22

oaths administered by, 30

their claim of disculpatory oaths, 36

not allowed to select compurgators, 47

compurgators for, 51

their evidence decisive in Wales, 55

not to serve as advocates, 73

Irish, their use of the duel, 109

not received as witnesses, 122

duel unfitted for, 128

subject to duel by Otho II., 131

their liability to the duel, 155

they fight personally, 156

champions allowed them, 157

dispensations for fighting duels, 160

exempted from secular laws, 161

forbidden the duel, 207

ordeal of corsnæd for, 342

ordeal of Eucharist for, 348

shaving reserved for, 403

they uphold the ordeal, 409

ordeal specially for, 412

exempted from the ordeal, 414

relieved from ordeals and duels, 415

subject to torture in Rome, 438

exempted from torture in Castile, 467

in France, 491

their presence forbidden at torture, 471, 475

use of torture renders them irregular, 484

their exemption from torture limited, 527

tortured in England, 566

_Clog Oir_, the, 397

Clotair II., his legitimacy proved, 39

prevents collusion in ordeal, 405

Clovis and the vase of Soissons, 450

Club, the, for duels, 176

Coblentz, council of, on conjurators, 43

Cobra used as an ordeal, 376

Cock used in ordeal, 256

Coke, Sir Edward, on use of torture, 567

Coke, Sir Thomas, his torture, 566

Colbert refuses counsel to accused, 517

Cold-water ordeal, its process, 318

its use in India, 319

its introduction in Europe, 321

a patrician or plebeian ordeal, 322

used in witchcraft cases, 325

in cases of heresy, 410

abuse of women, 417

_Collaudantes_ (see _Conjurators_).

Collusion in the ordeal, 405

Coloman, King, regulates privilege of ordeals, 415

Colville, Sir Thomas, 197

Combat, Trial by, 101

Commerce, its influence on the duel, 204

Comminges, Bernard of, challenges Foix, 225

Common law, torture not legal in, 563

Communes, their exemption from duel, 200

their influence on ordeals, 426

Communion before duel efficacious, 138

Communities, 14

responsibility of, 41

champions of, 196

Como, number of witches in, 560

Compensation for injuries, 16

Compounding for duel forbidden, 144

for the ordeal allowed, 383

Compurgation, 33

adopted by the Church, 35

conditions of, 51

in default of testimony, 52

depends on degree of crime, 56

in place of duel, 57

formulas of, 58

its ceremonial, 60

combined with ordeal, 61

confidence felt in it, 61

responsibility incurred, 64

its decline, 67

modification of oath, 71

abolished in England in 1833, 87

as used in the Inquisition, 90

combined with ordeal, 389

ordeal in case of failure, 390

and ordeal alternative, 392

replaces ordeal, 418

Condemnation of the innocent explained, 403

Conditions of compurgation, 51

of wager of battle, 140

of the ordeal, 383

Confession (judicial), partial, 46

withdrawal of, 52

extorted, invalid, 462, 563

in ecclesiastical law, 478

under torture must be confirmed, 463, 514, 522, 548

extorted in Inquisition, 485

under illegal torture is invalid, 550

revoked, invalid in Sicilian Constitutions, 482

questions concerning, 548

absolves accused, 550

torture repeated for, 463, 522, 548, 550

not necessary for conviction in Germany, 523

spontaneous, torture after, 546

under torture to secure salvation, 552

under promise of pardon, 558

rewarded by strangling, 573

must be spontaneous in England, 565

Confession (sacramental) secures victory in duel, 138

escape in ordeal by, 297, 310, 402

not made in ordeal of Eucharist, 351

Confidence reposed in compurgation, 61

in judicial duel, 127

in the ordeal, 399

Confirmation of confession required, 463, 522, 548, 550

of evidence required, 550

Confiscation for refusal of duel, 131

for default in duel, 173

for refusal of ordeal, 383

torture not used for cases of, 529

Confrontation of accused with witnesses, 517

of accused with accuser, 545

Confucianism, its freedom from superstition, 252

Conjurations forbidden in duels, 139

in ordeals, 407

use of against torture, 556, 557