Torture

TORTURE, which in a legal sense means the application of bodily pain in order to force discoveries from witnesses, or confessions from persons accused of crimes, has been recognised by the laws of most civilised nations as an instrument for obtaining judicial truth. A learned civilian terms it " 31es antiquissimus, omnium fer6 bone insti tutorum populorum cotnmunis : ut non immerit6 pro lege ac jure quedam gentium habeatur." (Wesenbechii, Pamtitla ad Dig. do Quwationibus; num. 3.) Torture was applied to slaves at Athens (Demosthen., °mt. adv. Pantsenet.'); and Cicero states that the Athenian and Rhodian laws allowed it to be applied even to citizens and freemen (' Omtorke Partit.,' 34); but there is some doubt as to the accuracy of this statement with respect to Athenian freemen. It has been questioned whether torture was used by the Romans during the republican period ; but Cicero frequently speaks of it as an ancient practice, and attributes it to the customs and institutions of an earlier age (" moribus majorum "). Omtio pro Rege Deiotaro,' c. 1 ; Pro 31ilone,' c. 22 ; Orat. Partit; 34.) Tacitus also ascribes a modification of the practice to an ancient Senatus-consultunt (' Ann.; lib. ii., c. 30). However this may have been, it is beyond all doubt that the use of torture in judicial inquiries had become fully established in the time of the early emperors. Regularly the Roman law admitted the torture only in the case of slaves when examined either as witnesses or offend ers; but under the emperors—even under Augustus, but more fre quently under Tiberius and Caligula—instances occur in which freemen and citizens were interrogated by torture : most of these instances, however, are to be considered as irregular acts of power, not sanctioned by law. Rules regulating the mode of applying torture, and limiting the occasions of its application, were early established in the Roman law. One of the most important of these is that which Cicero in the passages above cited refers to ancient usage, namely, that a slave should not be tortured to give evidence against his master, except in the cases of incest and conspiracy. Tacitus says that iu order to evade the ope ration of what he calls an ancient decree, prohibiting the " queestio eervi in Caput domini," Tiberius, " nevi juris reporter," invented the scheme of making over the slave from the accused to a public func tionary, and then putting him to the torture against his former master. This device is however ascribed by other historians to Augustus. (Dion., lib. Iv.) In judicial inquiries or public trials for crimes, the " quteetio" was applied at the instance of the accuser in the presence of the prvetor and judiece, and the statements made under torture were reduced into writing (in tabulas relate), and signed by the prmtor (Heineecius, Ant. Rom.; lib. iv., c. 18, sect. 25); but private persons also were permitted " in foro domestice," to extract evidence from their slaves by torture. (Cicero, Orat. pro Cluentio,' cc. 63, 66 ; Quin tilian, Declaim,' 328, 338, 353.) At a later period of the Roman empire, many new regulations appeared, and the earlier restrictions upon this practice were wholly removed or greatly modified. Several exceptions to the rule, which prohibited " qumstiones in caput dornini," were introduced, and even freemen were subjected to torture, when there was positive evidence of the " corpus delieti," and probable or presumptive evidence that the accused was the guilty person. More over, when the offence was of a grave character, and affected the head of the state immediately, personal exemptions from torture were not admitted. " Omnes omnin6," says the Digest ' (lib. xlviii., tit. 18; De Qumstionibus; sect. 10), "in majestatis crimine, quad ad personas Prineipum attinet, cum res exiget, torquentur." (Wasserschleben, Vistoria Qumstionum per Tormenta spud Romans,' BeroL, 1836.) It is remarkable, considering the extent to which the practice of torture was eventually carried by the Inquisition, that, according to the principles and early practice of the Canon law all severities of criminal justice were prohibited ; and by the ancient decretale of the church, every ecclesiastical person who took part in them was liable to censure. Previous to the 13th century no trace of the use or per mission of torture is to be found in the canon law, either in the process of accusation, which was founded entirely on the model of the Roman law, or in the inquiry. In the 13th century the severe rules of the Roman law respecting the torture of witnesses and accused persons " in crimine majestatis," began to be applied by the ecclesiastical law in the case of heresy, which was then considered and termed " crimen laeam majestatis divinm." Nevertheless, the earlier councils relating to the Inquisition, though violent in their denunciations against heretics, are silent respecting the use of torture ; and the first trace of any ecclesiastical sanction of this mode of proceeding, even in the case of heresy or apostacy, is found in a decree of Innocent IV. in 1252, which, however, does not authorise the inquisitors to use it, but calls upon the civil magistrates to press offenders to confession against themselves and others by means of torture. At a subsequent period the necessity for secrecy in the proceedings of the Inquisition induced the use of torture by the inquisitors themselves, and the extent to which it was afterwards used is notorious. (Biener's Geschichte des Inquisitions Processes.) An instance of the application of torture under the eccle siastical law occurred in England, under remarkable circumstances, about sixty years after the first sanction of the practice by the Church of Rome. In the great contest between Clement V. and the Templars in 1310, inquisitors were appointed by the pope to examine the prison ers who were charged (among other offences) with apostacy and heresy. The Archbishop of York, who was one of the inquisitors, propounded to certain monasteries and divines several difficulties which had occurred to him respecting the mode of conducting the examinations. Among other questions he asked, whether they might make use of - torture :—" Licet hoc in regno Anglim nunquam visum fuerit vel auditum 1 Et en torquendi aunt, utrum per elericos vel laicos / Et dato, good nullus omnino tortor inveniri valeat in Anglitl, utrtim pro tortoribus mittendum sit ad partes tmnamarinasl" (Hemingford, p. 256.) In consequence of the doubts of the archbishop, Edward If. refused to allow the inqnisitors to torture the accused. Upon this Clement wrote a letter of remonstrance to the king, who referred the matter to the council; and upon their recommendation it was resolved that the Templars should in the first place be separately confined and examined singly ; and if upon this mode of proceeding they refused to confess more than they had previously done, " quisd extune qutestion arestur, ita quad qureistiones illie Matte fierent abeque mutilations et debilitatione perpetutl alicujus membri, et sine violent:1 eanguinis effusione." (Raynouard, 31onumens Historiques relatifs h la Con damnation des Chevaliers du Temple.') In accordance with this resolution, a special commission from the king authorised the inquisi tors " to dispose and deal with the bodies of the Templars in vurs tionibus et aliis ad hoc convenientibus," as might seem fit to them to be done according to ecclesiastical law ; and a precept was issued to the sheriffs of London, in whose custody the accused were, to suffer the inquisitors to examine them and put them to the torture. (Rymer's 'Rederal tom. iii., pp. 228, 232.) Judicial torture formed a part of all the legal systems of Europe which adopted the Roman law. In Germany it was gradually intro duced as the use of the Roman law increased, and displaced the ancient Teutonic and feudal proceedings by ordeal and battle. Indeed, while these judicia dei continued in use, there is no notice of the existence of torture. In most German cities judicial torturo was unknown until the end of the 14th century ; although it appears in the statutes of the Italian municipalities at a much earlier period. (Mittermaier's Deutsche Strafverfahren,' theil i.) A species of torture was, indeed, employed in Germany to a very great extent during the middle ages, of which there are traces and traditions connected with the torture chambers and instruments still exhibited in Ntirnberg, Salzburg, Ratiabon, and other ancient cities and castles ; but these were in gene ral not used for legal or judicial torture, but for the proceedings of those secret religious tribunals, or' Felngerichte; which abounded at that period. The regular torture, however, as derived from the Roman law, continued in many European states until the middle of the last century, when more enlightened views on the subject of jurisprudence led to a prevailing conviction of the inefficacy and injustice of this mode of ascertaining truth. In France the " question preparatoire " was discontinued in 1780 by a remarkable decree, which is to be found in Merlin's Repertoire,' vol. x. ; and torture in general was abolished throughout the French dominions at the revolution in 1789. In Russia its abolition, 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 continued to form part of the laws of Bavaria, Hanover, and some of the smaller states of Germany within the last sixty years. (Mittermaier's Deutsche

Strafverfahren; theil i.) In Scotland, where the law is almost wholly founded upon the civil law, 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 in future "no person accused of any crime in Scotland shall be subject or liable to any torture." The history of the use of torture in England is curious. From the hesitation to apply it to the Templars in the reign of Edward II. (1310), as above mentioned, as well as from the express'statement of Walter de Hemingford, it appears to have been at that time unknown in Eng land, either as an act of prerogative, or as an instrument of criminal inquiry warranted by law. Nevertheless, Holinshed relates that, in 1468, Sir Thomas Coke, the lord mayor of London, was convicted of misprision of treason upon the evidence of one Hawkins, given under torture; and that Hawkins himself was convicted of treason by his own confession on the rack, and executed. From this period until the Commonwealth the practice of torture was frequent and uninterrupted, the particular instances being recorded in the council-books, and the torture-warrants in many eases being still in existence. The last instance on record occurred in 1640, when one Archer, a glover, who was supposed to have been concerned in the riotous attack upon Arch bishop Laud's palace at Lambeth, "was racked in the Towcr," as a contemporary letter states, " to make him confess his companions." A copy of the warrant under the privy seal, authorising the torture in this case, is extant at tho State-Paper Office. With this instance the practice of torture in England ceased, no trace of its continuance being discernible during the Commonwealth or after the Restoration. But although the practice continued during the two centuries immediately before the Commonwealth without intermission, it was condemned as contrary to the law of England, and even declared to be unknown in this country by judges and legal writers of the highest character who flourished within that period. Thus Porteseue, who was chief-justice of the court of King's Bench, and wrote his book, `De Laudibus Legum Anglin; in the reign of Henry VI., and who notices a case of false accusation under torture (which was probably the case of Sir Thomas Coke above mentioned), condemns the practice in the strongest terms, though he does not expressly deny its existence in England. (Fortescue, cap. 22.) Again, Sir Thomas Smith, a very eminent lawyer, statesman, and scholar, who wrote iu the early part of Elizabeth's reign, 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. It is taken for servile." (Smith's ' Commonwealth of England,' book ii., cap. 27.) And Sir Edward Coke, who wrote in the reign of James I., says " there is no law to warrant tortures in this land ; and there is no one opinion in our books, or judicial record, for the maintenance of them." (3 Inst.; 35.) Notwithstanding this explicit denunciation of the practice as against law, both Smith and Coke repeatedly acted as corn nriesioners 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 pages before the words just cited (p. 25), impliedly admits that torture was used at examinations 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 unanimously resolved, in answer to a question propounded to them by the king in the ease of Felton, who bad stabbed the Duke of Buckingham, " that he ought not to be tortured by the rack, for no such punishment 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 minis terial offices under the crown. l'ossibly the explanation of this incon sistency between the opinions of lawyers and the practice ma§ ho found in a distinction between 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 torture was not part of the common law ; it was not used in judicature, as it was by the Roman law and the legal systems derived from it in Germany, Italy, and Spain ; and, therefore, in England no judge could by law direct tho torturo to be applied, and no party or prosecutor could demand it as right. But that which was not lawful in the ordinary course of justice was often lawful for the prerogative of the crown, which authorised this mode of enforcing the discovery of crimes affecting the state, such as treason 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, in accordance with the doctrine asserted so early as the reign of Edward L, " quad Rex pro eommnni utilitato per prerogatiroza suant in multis ca.sibus est. .uprb lope et coneuetudines regno sue usitatas." (' Rolls of Parliament,' 20 Edw. I., A.D. 1292, vol 1) 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. Objec• tionable as the use of torture was in all countries and under all circum stances, It WAS in no country so unjust and dangerous an instrument of power as in England. In other countries, where it formed part of the law of the land, it was subject to specific rules and restrictions, fixed and determined by the same law which authorised tho use of such an instrument, and those who transgressed them were liable to severe punishment.. But in England there were no rules, no responsi bility, 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 judi cature when there is i plena prolsatio--a half-proof against a man ; then, to see if they can make it full, they rack him if he will not con fess. 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." (' Table-Talk,'—'1`riaL) The particular modes of applying torture were as various as the ingenuity of man Is fertile in devising the means of inflicting bodily pain. Cicero and other Itomen writers speak of the equideus, or nukes, and the ftdiembr, as common instruments of torture ; but it is extremely doubtful what they were. Much discussion respecting them, and a reference to the various euthore who have mentioned them, will be found in a treatise entitled Hieronytni Magii Anglarensis de Equuleo Libor Posthumus; Amsterdam, 1664. The rack, which was common throughout Europe, was a large frame, iu shape somewhat resembling a mangle, upon which the examinant was stretched and bound ; cords were then attached to his extremities, and, by a lever, gradually strained, till, when carried to its utmost severity, the operation dislocated the joints of the wrists and ankles. This engine is said to have been brought into the Tower by the Duke of Exeter in the reign of Henry VI., and was thence called the Duke of Exeter's daughter. (8 ' Inst.,' 85.) Besides the rack there were endless varieties of what were termed the "leaser tortures," such as thumb-screws, pincers, and manacles. In England, one of the most dreaded engines of this kind was the scavenger's daughter, so called by a popular corruption from Skevington'a daughter, being invented by Sir William Skevington, a lieutenant in the Tower in the reign of Henry VIII. (Tanner's Societaa Europese?) In Scotland the instruments were the boots, called in France "le brodequin" (in which the tor ture was applied by driving in wedges with a hammer between the flesh and iron rings drawn tightly upon the legs); the thumtnikine ; the pinniewinits, or pilliewinks; the caspitaws, or easplcaws ; and the tosots. (Maclaurin'a • Introduction to Criminal Trials,' sect. 9.) The particular construction of these barbarous instruments it would be diffi cult at the present day to ascertain, but several of them were in practical use in Scotland within twenty years from the final abolition of torture in that country in 1708. (Howell's ' State Trials.' vol. vi.) It is remarkable that although the use of torture in judicature has prevailed in most civilised countries, it has been almost universally denounced by enlightened jurists of all ages. Cicero repeatedly con demns it as unjust and inefficacious; and even the civil law, which sanctioned the practice in Europe for many centuries, speaks of it as ' a deceitful and dangerous instrument, which very often fails to extract the truth." (' lib. xhfii., tit. 18.) 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. (Mittermaler's 'Deutsche Stmf verfahreo, theil 1.) On the other hand, a curious defenCli of torture will he found in 1Visernan's ' Law of Laws, or the Excellence of the Civil Law.'