_Torture is a very fallible means for discovering the truth in criminal
Cases._
LVI. I enter upon this essay, begging permission of all tribunals of
justice to speak my sentiments on this head. I venerate the laws and
the use of them; but as I am treating here of such as are purely human,
I apprehend I may be permitted to reason on the tendency or propriety of
them. Nor is the torture being admitted in the ecclesiastical courts,
as a mode of enquiry in the examination into crimes, any objection to
my doing this, for as the learned Canonist Francis Schomer observes,
this practice is not conformable to the antient discipline of the
church; and he quotes other authors in support of this opinion, and says
further, that in a long course of time, it by little and little, came to
be transferred from the secular tribunals to the ecclesiastical ones:
_Predetentim à curiis sæcularibus ad ecclesiasticas pervenisse_ (Schmier
in Supplem. ad lib. v. Decret); so that doubting of the propriety of
inquiring by torture in the ecclesiastical courts, amounts to no more,
than disputing whether the antient or modern practice of those courts, is
the most consonant to reason.
LVII. Besides, this being a matter which in its own nature is open to
controversy, there are two notable circumstances in it, which encourage
me to enter upon the discussion of the point. The first is, that very
many people think as I do on the subject, and that among those very many,
there are more than a few of the very judges, who practise ordering
the torture, in cases where that practice has been long established.
Their sentiments in theory do not correspond with their conduct, but
notwithstanding this, they act as they should do, for they have no
authority to dispense with the laws, but are only ministerial under
them. The second is, that the most learned father Claudius Lacroix,
has preceded me in publishing the same sentiments I entertain on this
subject, in his first volume of Moral Theology, lib. iv. &c.
LVIII. Countenanced and encouraged by so illustrious an author, whose
opinion in questions of morality is so much respected, and so generally
assented to by all Christendom, I shall enter upon the undertaking
boldly, and shall argue with spirit in support of his opinion and my own.
The extent of the question is but short, and whenever reason sets its
foot within its boundary, it soon arrives at the end of it.
LIX. It cannot be denied, that the not confessing in the torture,
depends upon the spirit and fortitude of the person tortured, to resist
the rigour of that trial; and I ask now, is this spirit and fortitude
produced by the innocence of such a person? It clearly is not, but rather
by the robustness of mind or body which that person possesses. The
torture then, can be of no use to ascertain the guilt or innocence of any
one, but it is the bodily strength or weakness of mind, of whoever is
unfortunate enough to experience its rigour, that determines the point.
LX. Nero having unjustly repudiated his wife Octavia, and married Poppea,
she not content with having usurped the bridal bed, and crown of Octavia,
but in order to deprive her of life and honour also, accused her of
having had a criminal correspondence with a slave. For the purpose of
ascertaining the guilt of Octavia, six of her female servants were put to
answer by the torture; and what was the result of this? why, that some
of them declared her guilty, and others denied it. Did not they all know
that the accusation was false? and do not all authors agree that they
did? But what did this signify, if, in the torture, their pain, and not
their veracity, influenced them to confess she was guilty of the crime?
Whoever has fortitude enough to endure the rigour of the cord, will deny
the fault he is tortured to confess, although he was really guilty of it;
whoever has not, will confess a crime he never committed. The effects of
the torture on the servants of Octavia, tended to prove the fortitude of
some of then, and the weakness of others; but for ascertaining the truth
were of no use.
LXI. It seems then, that the innocent are exposed to equal danger from
the torture with the guilty. A terrible inconvenience this, but the worst
part of it is, that the danger is not equal, but greater on the side of
innocence. I may be told that I am advancing a new paradox, and I confess
that I am, but if I am not greatly mistaken, I shall make it appear,
that I have been advancing nothing that is not strictly true. It is a
known fact, that those who are daring enough to commit great crimes, are
much more hardened, robust, and ferocious people, than those who lead a
quiet and regular life. It should follow then from these premises, that
they are better calculated to endure the rigours of a torture, than the
tranquil and inoffensive part of mankind; and it will also follow from
thence, that these last will be more likely to confess themselves guilty
of a crime they are falsely accused of, than the others will be, to
confess one they have really committed. This is a remark made by father
Lacroix, and the following are his words: _sequitur per torturas sæpè
everti justitiam, quia innocentes, qui sæpè sunt impatientes dolorum,
coguntur se fateri nocentes; e contra nocentes, qui plerumque sunt
ferociores, tolerata tortura se probant innocentes._
LXII. On the contrary, those of quiet and peaceable dispositions,
are generally people of more delicate feelings than the others, and
especially, if their mode of living has corresponded with the native
excellence of their tempers. From whence it should follow, that the
probable result of putting one of these to the torture, would be, that
he would sooner confess himself guilty of a crime he never committed,
than one of the others, would own himself guilty of one he had actually
perpetrated.
LXIII. I consider the sentiment of Plato to be a true one, who says,
that great vices, no less than great virtues, require great powers and
fortitude to exercise them. The serenity with which Geronimus Olgiatus,
Balthasar Gerardus, and Francis Ravillac, the first for the assassination
of Galeazus Maria duke of Milan, the second for that of William prince
of Orange, and the third for that of Henry the Fourth of France, fully
demonstrate, that those who dare attempt great and dangerous things, are
capable of enduring great torments.
LXIV. I shall conclude this subject, with the striking, and most
efficacious testimony of Father Frederic Spe, which throws all the
light upon this matter that can be wished for, or desired. This learned
German Jesuit, when he is treating of the little dependance there is
to be placed on the confessions of people accused of witchcraft, which
confessions have been extorted from them by the rack; quotes, in support
of what he advances, the testimony of the Baron de Leibnitz, and Vincent
Placcius, whom he supposes to be the author of the anonymous Treatise,
intituled, _Cautio criminalis in processu contra sagas_.
LXV. Father Spe, when he is speaking of the confessions that have been
made by supposed witches and wizards, when put to torture, delivers
himself thus; the numbers of lyes they will tell, both of themselves and
others, is incredible. All which the judges are desirous they should say
is true, they confess to be true; and they own every thing they would
have them own of themselves, compelled to it by the violence of the
torture; and they do not afterwards dare to retract what they have said,
for fear of being tortured again; thus these miserable wretches, go to
their deaths attesting a falsehood. Father Spe concludes in this manner,
I am certain that what I have said is just and right, and I appeal
for the truth of it, to the judge of that supreme tribunal, where all
mankind, both quick and dead, will one day be sentenced to rewards and
punishments, proportioned to their merits and demerits.
LXVI. I declare that when I first read this account, I found my whole
frame pervaded by a deep melancholy sensation, that resembled somewhat
like horror mixed with pity. He who gives the relation, is a learned,
grave, exemplary, and sound divine, instructed in this case, not by
conjectural reasoning, but by certain informations, acquired in the
sacred confessional chair, and taken from the mouths of those, who were
on the point of being led to execution as guilty people; and this he
declared from repeated experience he had had of those matters, during
a long course of years. What can be objected that is deserving of any
attention, to so conclusive a testimony?
LXVII. The certainty Father Spe had, of the almost invincible force of
the torture, to oblige innocent people to confess themselves guilty of
crimes they never committed, is very forcibly illustrated, in a vehement
declaration to the judges, with which he concludes his Essay. He says to
them, why are you so solicitous in searching out, and why do you take
so much pains to discover, people who are guilty of witchcraft? There
is no necessity for your giving yourselves all this trouble, for if you
want to discover more, I can tell you how to furnish yourselves with
them, without labour or difficulty; take the first Capuchins, the first
Jesuits, and the first men of any other religious order, that you shall
meet by chance, and put them to the torture; and if you shall be desirous
of making them do so, you will find that there is scarce one of them,
who will not confess that he has been guilty of the crime of witchcraft.
If any of them should deny it, repeat the torture two or three times,
and I will engage that you will bring them to. Pluck out their hair by
the roots, exorcise them, and repeat to them the common-place cant that
the devil has hardened them; and as if you was convinced this suspicion
was just, behave to them, with determined inflexibility, and you will
perceive, that there is not one among them, who will refuse to submit.
I have pointed out to you already how you may be supplied with an ample
stock of sorcerers, but if you want more still, take the prelates of the
churches, and all the canons and doctors belonging to them; and by the
application of the same means, you will be convinced, that they may be
all brought to confess themselves guilty of witchcraft; for people who
have been bred up in so delicate a way, will hardly find themselves able
to resist the rigours of a torture. But if you are not satisfied with
this supply, and should want more still, I would recommend to you, to put
one or two of yourselves to the torture, and you will find that you will
confess also in the same manner the others have done; and if immediately
after this, you were to torture me, you would be satisfied, that I should
do the same. And by this mode of proceeding, you may make witches,
wizards, and magicians, of all mankind.
LXVIII. I am ready to admit, that so vehement a declamation, should not
be made to all judges indifferently, but that it should be addressed
only to such as proceeded with the little caution those did whom
Father Spe alludes to; although it is certain, that in accusations for
witchcraft, there is more danger of innocent people being brought to
capital punishment by the torture, than there is by charges of any other
nature. Every man of discretion knows, upon what ridiculous grounds,
the common people spread reports of folks being guilty of witchcraft,
and with what ease the world believe them, and how ready they are to
testify to the truth of such reports. In consequence of which, if the
accused persons happen to be brought before judges, who, like the rustic
vulgar, are filled with the notion or belief, that there are multitudes
of witches and wizards, they immediately have recourse to the torture,
and innocent people are tormented like delinquents. From whence it
follows, that those who are falsely accused, from their inability to
resist the pain of the rack, assent to the interrogatory, and against
their consciences own themselves guilty. To this number, we may add many
others, who own themselves guilty from delusion or infatuation. This
delusion is contagious, and multiplies and spreads exceedingly, whenever
there prevails a rage for finding out witchcrafts; for the numbers of
these delinquents are increased, in all places where there are officious
inquisitors after sorcerers, just as the numbers of possessed people are,
where there are plenty of persevering and absurd exorcists.
LXIX. But notwithstanding that in such accusations, on account of their
being so frequently ill-founded, the hazard of innocence being oppressed
by the anguish of the torture becomes greater than in other cases; still
the same danger subsists, though not in so great a degree, with respect
to all those who are falsely accused of any other serious crimes. I mean,
that if any one from want of fortitude, confesses in the torture the
crime of witchcraft, which he is quite innocent of, he may in the same
manner, and by the same means, be brought to confess himself guilty of
a murder, a sacrilege, a robbery, or any other great offence he never
committed. Thus the experience of the learned Jesuit, with respect to
the fallibility of the torture in the examination into the truth of
witchcraft; identifies and proves its fallibility, in the inquiry into
the certainty, of whether any other person has been guilty of a crime he
stands accused of.