TONTINE, a species of life annuity, so called from Lorenzo Tonti, a Neapoli tan, with whom the scheme originated, and who introduced it into France, where the finst tontine was opened in 1653. The subscribers were divided into ten classes, according to their ages, or were allowed to appoint nominees, who were so divided, and a proportionate annuity being assigned to each class, those who lived longest had the benefit of their sur vivorship, by the whole annuity being divided amongst the diminished number. The terms of this tontine may be seen in the French ' Encyclop&lie ' (' Finance' I division, vol. iii., p. 704). In 1689 a second tontine was opened in France. The last survivor was a widow, who, at the period of her death, at the age of 96, enjoyed an income of 73,5C0 livres for her original subscription of 300 livres. The last French tontine was opened in 1759. They had been found very oner ous, and in 1763 the Council of State de termined that this sort of financial opera tion should not be again adopted. Ton tines have seldom been resorted to in England as a measure of finance. The last for which the government opened subscriptions was in 1789. The terms may be seen in Hamilton's ' Hist. Public Revenue, p. 210. There have been nu merous private tontines in this country.
ToRTu RE, in a legal sense, means the application of bodily pain in order to force discoveries from witnesses, or confessions from persons accused of crimes. Torture was applied to slaves at Athens (Demos then., Orat. adv. Pantenet.); and Cicero states that the Athenian and Rhodian laws allowed it to be applied even to citizens and freemen (Oratori• Pada., 34); but there is some doubt as to the accuracy of this statement with respect to Athenian freemen. Cicero speaks of torture as an ancient Roman practice, and attributes it to the customs of an earlier age (" moribus majornm"). ( ()ratio pro Rege Deiotaro, c. 1; Pro Milone, c. 22; Orat. Partit., 34.) However this may have been, the use of torture in judicial inquiries had be come fully established in the time of the early emperors. The Roman law allowed the torture as a general rule only in the case of slaves when examined either as witnesses or offenders Rules for regu lating the mode of applying torture, and limiting the occasions of its application, were early established. One of the most important of these is that which Cicero in the passages above cited refers to ancient usage, that a slave should not be tortured to give evidence against his ex cept in the cases of incest (in the Roman sense) and conspiracy. Tacitus (Anna ii. 30) says that in order to evade an old senatus consultum which prohibited the torture of a slave in order to get evidence which might affect the life or status of his nester, Tiberius invented the device of making over the slave from the accused to a public functionary, and then putting him to the torture against his former master. This device is however ascribed to Augustus. (Dion, lib. lv. 5.) In ja dicial inquiries, or trials for crimes, the quiestio " was applied at the instance of the accuser in the presence of the praetor and judices, and the statements made un der torture were reduced into writing (in tabulas relata), and signed by the praetor (Heineccius, Ant. Bonn, lib. iv. c. 18, sect. 25); but private persons also were per mitted to extract evidence from their slaves by torture. (Cicero, Orat. pro Cluentio, cc. 63, 66 ; Quintilian, Declam., 328, 338, 353.) • At a later period of the Roman empire many new regulations were made, and the earlier restrictions upon this practice were removed or greatly modified. Several exceptions to the rule, which prohibited slaves from being tor tured to give evidence that might affect the life or status of their master, were introduced, and even freemen were sub jected to torture, when there was positive evidence of a crime, and probable or pre sumptive evidence that the accused was the guilty person. Moreover when the offence was of a grave character, and affected the Emperor immediately, per sonal exemptions from torture were not admitted. (Dig. 48, tit. 18, s. 10, De Quirstionibus.) In Germany judicial torture was intro duced as the Roman law became more established, and displaced the ancient Teutonic and feudal proceedings by or deal and battle. Indeed while these Ju dicia dei, as they were called, continued in use, there is no notice of the existence of torture. In most German cities judieial torture was unknown until the end of the fourteenth century ; although it appears in the statutes of the Italian municipali ties at a much earlier period. (Mitter maier's Deutsche Strafverfahren, theil i pp. 73, 394.) The regular torture, as derived from the Roman law, continued in many European states until the middle of the last century, wheu more enlightened views led to a general conviction of the inefficacy and injustice of this mode of ascertaininir truth. In France the " cues Lion preparatoire" was discontinued in 1780 by a remarkable decree, which is in Merlin's " Repertoire," vol. x. p. 602 ; and torture in general was abolished throughout the French dominions at the Revolution in 1789. In Russia its aboli tion, though recommended by the empress Catherine in 1763, was not effected until 1801. In Austria, Prussia, and Saxony it was suspended soon after the middle of the last century; but although so seldom used as to be practically extinct, torture was allowed by the law of Bavaria. Hanover, and some of the smaller states of Germany, within the last forty years. (Mittermaier's Deutsche Strajberfahren, theil i. p. 396, note.) In Scotland, the
use of torture prevailed until the reign of Queen Anne, when it was declared by the act for improving the union of the two kingdoms (7 Anne, c. 21, s. 5), that iu future "no person accused of any crime in Scotland shall be subject or liable to any torture." It may be inferred from the case of the Templars in the reign of Edward IL (1310), as well as from the statement of Walter de Hemingford (p. 256), that torture was then unknown in England. Nevertheless, from the year 1468 until the Commonwealth, the practice of tor ture was frequent, and the particular instances are recorded in the council-books, and the torture-warrants in many cases are still in existence. The last instance on record occurred in 1640, when one Archer, a glover, who was supposed tc have been concerned in the riotous attack upon Archbishop Laud's palace at Lam beth, "was racked in the Tower," as a contemporary letter states, "to make him confess his companions." A copy of the warrant under the privy seal, authorizing the torture in this case, is in the State Paper Office. With this instance the practice of torture in England ceased, no trace of its continuance being discern ible during the Commonwealth or after the Restoration. But although the prac tice continued during the two centuries immediately before the Commonwealth, it was condemned as contrary to the law of England by judges and legal writers of the highest character who lived within that period, such as Fortescue, who cou demns the practice in the strongest terms, though he does not expressly deny its existence in England (Fortescue, cap. 22); by Sir Thomas Smith, who wrote in the early part of Elizabeth's reign, and says that " torment or question, which is used by the order of the civil law and custom of other countries, is not used in England" (Smith, Commonwealth of Eng land, book ii. cap. 27); and by Sir Ed ward Coke, who wrote in the reign of James I. (3 Inst. 35). Notwithstanding this denunciation of the practice as against law, both Smith and Coke repeatedly acted as commissioners for interrogating prisoners by torture (Jardine's .Reading on the Use of Torture in England); and the latter, in a passage which occurs in the same book, and only a few be fore the words just cited (p. 25), impliedly admits that torture was used at examina tions taken before trial, though it was not applied at the arraignment or before the judge. There is also a direct judicial opinion against the lawfulness of torture in England. In 1628 the judges unani mously resolved, in answer to a question propounded to them by the king in the case of Felton, who had stabbed the Duke of Buckingham, " that he ought not to be tortured by the rack, for no such punish ment is known or allowed by our law." (Rushworth's Collections, vol. i. p. 638.) And yet several of the judges who joined in this resolution had themselves executed the warrants for torture when they held ministerial offices under the crown. Possi bly the explanation of this inconsistency between the opinions of lawyers and the practice may be found in a distinction be tween prerogative and law, which was better understood two centuries ago than it is at the present day. It was true, as the above authorities declared, that tor ture was not part of the common law ; in England no judge could direct the torture to be applied, and no party or prosecutor could demand it as a right. But that which was not lawful in the ordinary course of justice, was done under the pre rogative of the crown, which authorized this mode of discovering crimes that af fected the state, such as reason or sedition, and sometimes of offences of a grave character not political.-acting in this respect independently of and even para mount to the common law. (Rolls of Par liament, 20 Edw. I., A.D. 1292.) This view of the subject is confirmed by the circumstance that in all instances of the application of torture in England, the warrants were issued immediately by the king, or by the privy council. The con sequence was that in no country was torture so dangerous an instrument of power as in England. In other countries, where it was part of the of trial, it was subject to rules and restrictions, fixed and determined by the same law which authorized the use of such an in strument, and those who transgressed them were liable to severe punishment. But in England there were no rules, no law beyond the will of the king. " The rack," says Selden, " is nowhere used as in England. In other countries it is used in judicature when there is a semiplena probatio, a half-proof against a man ; then, to see if they can make it full, they rack him if he will not confess. But here in England they take a man and rack him,— I do not know why nor when,—not in time of judicature, but when somebody bids." Talk, The particular modes of torture, by the rack or otherwise, are now mere objects of literary curiosity.
Although torture was to some extent practised under the Roman Law, Ulpian (48 tit. 18, s. 1, § 24) remarks that it is declared by the Imperial constitutions that we must not always give credit to it, nor yet always refuse credit to it, for it is a thing uncertain, dangerous, calculated to mislead. The opinions of eminent lawyers in England have been already cited ; and the juridical writers of the Continent, in more recent times, have unanimously taken the same view of the subject. (Mittermaier's Deutsche Straf verfahren, theil i. p. 396.) There is a curious defence of torture in Wiseman's Law of Laws, or the excellence of the Civil Law,' p. 72.