The Church.—The Church, although adopting a good deal of Roman law, was at first definitely opposed to torture. Thus the synod at Rome in 384 condemned it. In 1282, a bull of Inno cent IV. directed the civil power to torture heretics, but the canon law had little to say upon the subject, holding that although it was no sin in the faithful to inflict torture, a priest might not do so with his own hands. In later times, torture was inflicted by the Inquisition. Torquemada's code of instructions (1484) pro vided that an accused might be tortured if semiplena probatio existed against him, i.e., so much evidence as to raise a grave pre sumption of guilt. Confessions extracted during torture required subsequent confirmation, but retractation involved further tor ture or extraordinary punishment. One or two inquisitors, or a commissioner of the Holy Office, were bound to be present at all examinations. Following certain abuses, a decree of Philip II. in 1588 forbade torture without an order from the council, but the decree was not fully observed. An edict of the Inquisitor General Valdes, in 1561, left torture to the prudence and equity of the judges. They must consider motives and circumstances be fore decreeing torture, and must declare if it were to be employed in caput proprium, i.e., to extort a confession, or in caput alienum, i.e., to incriminate an accomplice. Torture was not to be decreed until the termination of the process and after defence heard, and the decree was subject to appeal, but only in doubtful cases, to the Council of the Supreme. It was also only in doubtful cases that the inquisitors were bound to consult the council. On rati fication 24 hours afterwards of a confession made under torture, the accused might be reconciled, if sincerely repentant, or if con victed of bad faith he might be delivered to the secular power to be burned. Torture had ceased to be inflicted before the sup pression of the Inquisition, and a papal bull in 1816 decreed its abolition. The actual rules, e.g., Torquemada's, were not so cruel as the construction put upon them by inquisitors. Thus Tor quemada's direction that torture should only be renewed for re tractation was evaded by terming renewed torture a continuation. Besides the two sets of rules already mentioned, those of Nicholas Eymenico, grand inquisitor of Aragon about 1368, and of Simancas, two centuries later, deserve mention. In 1545 and 155o, Charles V. issued instructions for the guidance of inquisitors. Abuses, how ever, were exceedingly frequent.
England.—The English common law never recognized the legality of torture (except perhaps in the early ordeals) and Coke, commenting on Magna Carta, cap. 29, observes : "No man destroyed, etc., that is, forejudged of life or limb, disinherited, or put to torture or death" (2. Inst. 48. b). The Bill of Rights also provided that cruel and unusual punishments ought not to be inflicted. Judicial opinion was always in theory opposed to it, and in Felton's case (1628) a resolution of the judges declared "that he ought not by the law to be tortured by the rack, for no such punishment is known or allowed by our law." Accordingly, in only two instances was a warrant to torture issued by a common law judge, although it was an incident in criminal procedure for several centuries, being ordered either by the Crown or council, or some extraordinary tribunal, and especially by the star chamber. Cases occur as early as the 13th century, and continue down to 1640. One case only is recorded after this date, three Portuguese being tortured at Plymouth during the Commonwealth. The rack was introduced in the reign of Henry VI. by the duke of Exeter, and was hence known as "the duke of Exeter's daughter." Other varieties of torture were "the scavenger's daughter," or manacles, which pressed the victim's head to his feet, the iron gauntlets or bilboes, and the cell called "Little Ease." In Elizabeth's reign,
the rack was in constant use. Witnesses were never tortured.
One peculiar form of torture was not unknown to the common law—the peine forte et dure. If a prisoner refused to plead, re maining mute of malice, he was stretched upon his back, and pressed with heavy weights, until he either consented to plead, or died. This practice was abolished by 12 Geo. III. c. 20, a case having occurred so late as 1726. Tying the thumbs with whipcord was frequently used instead of the peine. Witch trials also in volved incidents of torture, such as throwing the accused into a pond to discover whether she would sink or swim.
As a part of punishment, torture by mutilation appears in pre-conquest codes and in the assize of Northampton (1176). Later examples are burning to death for heresy, drawing and quartering for treason, branding in the hand for felony, the pillory, the stocks, branks and ducking stool. All these have now been abolished, although corporal punishment for robbery with violence and for juvenile offenders still exists.
Scotland.—Torture was long a recognized part of Scottish criminal procedure. Numerous instances occur in the Register of the Privy Council. The last warrant was issued in 169o, and it was finally abolished in 1708. Among the most celebrated forms em ployed in Scotland was the "boot." The "boot," comprising a long iron boot in which the foot was inserted, wedges being then driven between the limb and the boot, was not peculiar to Scotland for records are found in French criminal trials, and again in Ireland, where in 1583, Hurley, a priest, was tortured in Dublin by "toast ing his feet against the fire with hot boots"; this species of torture was employed, not only for crime, but as an incident in religious persecution (Lecky, Rationalism in Europe, 1865, II., P. 45), and sometimes by the nobility for their own ends. Thus in 1605, a suit was brought against the earl of Orkney, for putting a son of Sir Patrick Bellenden in the boots. Other Scottish methods of torture were the rack, the pilniewinkis (known in England as the thumbikins, and resembling the thumbscrew), the caschie-laws (an instrument drawing the body and limbs together, heat being applied in some cases), the lang irnis (heavy weights, sometimes exceeding so stones), the harrow-bore (perforations through which the teeth of harrows were inserted), the pynebankis (a variety of the rack) and the artificial prevention of sleep.
Ireland.—Torture was recognized in Ireland neither by stat ute nor by common law, and few cases are recorded of its in fliction. In 1566, however, the president and council of Munster, or any three of them, were empowered to inflict torture "upon vehement presumption of any great offence in any party com mitted against the queen's majesty." British Colonies and Dependencies.—In any British pos session, the infliction of torture has usually been regarded as con trary to law. In 18o6, however, Sir Thomas Picton, the governor of Trinidad, was tried for subjecting Luisa Calderon to the tor ture of the piquet, in which the sufferer was supported only on the great toe, which rested on a sharp stake, and by a rope at tached to one arm. One of the grounds for defence was that tor ture was authorized by the Spanish law of the island. The accused was convicted, but sentence was respited. Warren Hastings was also charged with extortion from the begums of Oude by means of the torture of their servants. The Indian penal code now ex pressly forbids torture. In Ceylon it was formerly allowed by the Dutch, but was abolished by royal proclamation in 1799.