United States.—In 1692, Giles Cory of Salem, accused of witchcraft, refused to plead, and was subjected to the peine forte et dure. The American constitution forbids cruel and unusual punishments, on which there have been numerous decisions.
These fall into four main groups, the Latin, Teutonic, Scandi navian and Slav states. The principles of Roman law were-gen erally adopted in the first and second groups.
France.—In France, torture does not seem to have existed as a recognized practice before the 13th century. From then until the i 7th century it was regulated by a series of royal ordon nances, and was applied only in the royal courts, its place in the seigneurial courts being supplied by the judicial combat. The earliest ordonnance was that of Louis IX. in 1254, for the ref ormation of the law of Languedoc. It enacted that persons of good fame, though poor, were not to be put to the question on the evidence of one witness. In 167o, an ordonnance of Louis XIV. regulated the infliction of torture for more than a century. Two kinds were recognized, the question preparatoire and the question prealable. The first was abolished by royal decree in 1780, but in 1788 the parlements refused to register a decree abolishing the prealable. Torture of all kinds was abolished by an ordonnance of Oct. 9, 1789, however, and the modern code penal enacts that criminals employing torture to further their ends shall be guilty of assassination, whilst it is also an offence to torture a person under arrest.
Italy.—The law as it existed in Italy is contained in a long line of authorities chiefly supplied by the school of Bologna, be ginning with the glossatores and continued by the post-glossatores until the system attained its perfection in the vast work of Farinac cius, in the early 17th century, where every possible question that could arise is treated with revolting completeness. The writings of the jurists were supplemented by a large body of legislative enactments in most of the Italian states, extending from the con stitutions of the Emperor Frederick II. down to the 18th century.
Farinaccius was procurator-general to Pope Paul V., and the principal feature of his work is the minute and skilful analysis of indicia, fama, praesumptio, and other technical terms. For every
infliction of torture a distinct indicium is required. A single witness or an accomplice constitutes an indicium. This rule does not apply where torture is inflicted for discovering accomplices or a crime other than that for which it was originally inflicted. Tor ture may be ordered in all criminal cases, except small offences, and in certain civil cases, such as denial of a depositum, bank ruptcy, usury, treasure trove and fiscal cases. It may be inflicted on all persons, unless specially exempted (e.g., clergy and minors) and even those exempted may be tortured by command of the sovereign. There are three kinds of torture, levis, gravis and gra vissima, the first and second corresponding to the ordinary torture of French writers, the last to the extraordinary. This last was as much as could possibly be borne without destroying life. The judge could not begin with torture; it was only a subsidutn. If inflicted without due course of law, it was void as a proof.
Among other important writers was Julius Clarus of Alessandria, a member of the council of Philip II. Generally, he follows Fari naccius. He puts the questions for the consideration of the judge with great clearness. These are—whether (I) a crime has been committed, (2) the charge is one in which torture is admissible, (3) the fact can be proved otherwise, (4) the crime was secret or open, (5) the object of the torture is to elicit confession of crime or discovery of accomplices. The clergy can be tortured only in charges of treason, poisoning and violation of tombs.
Other Italian writers of less eminence are Guido de Suzara, Paris de Puteo, Aegidius Bossius of Milan, Casonus of Venice, Decianus, Follerius and Tranquillus Ambrosianus. Torture was abolished in Tuscany in 1786, largely owing to the influence of Beccaria, and other States followed. The puntale, or piquet, how ever, existed in practice at Naples until 1859. Savonarola, Machia velli, Giordano Bruno, Campenella are among those subjected to torture in Italian history. Galileo appears only to have been threatened with the esame rigoroso. The historical case of the greatest literary interest is that of the persons accused of bring ing the plague into Milan in 1630 by smearing the walls of houses with poison.