THE EUROPEAN LAW OF TORTURE. 659 



List of possible mitigating circumstances under which prosecu- 

 tion may be relaxed and penalties reduced. 



Scale of punishments for different grades, and forms to be used 

 in pronouncing sentence, after torture and conviction. 



The irrepressible savage love of causing pain was shown by 

 the methods of execution as well as those of examination and 

 trial. A translation of the prescribed forms of final judgment 

 exhibits a tediously elaborate array of fiendish methods to make 

 death slow and agonizing, and strike terror into myriads of be- 

 holders. Though foreign to our present topic, they illustrate the 

 ruling passion of that age. 



The chapter on allowing the accused the privilege of attorney 

 and defense, begins with the fine assertion that defense is to be 

 denied to no one. Then comes an intricate list of conditions and 

 exceptions, which narrows the jjrivilege to a very small chance. 

 The final condition, however, might well be adopted for the reform 

 of modern courts : " Before the defensor takes up the case of a 

 prisoner, he shall bind himself not to act dishonestly to suppress 

 the truth, but to do everything in bona fide." 



To determine guilt or innocence, the ancients that is, savage 

 races in general have used all sorts of divination, more or less 

 senseless or cunning. There were water tests, fire tests, poison 

 tests, and exposure to wild beasts. One favorite fashion was by 

 single combat, which has degenerated into the modern duel. The 

 wager of battle, like all the rest, presumed the idea that the Deity 

 would interfere to protect the guiltless. Races sprung from Vi- 

 king stock were especially liable to this error, which even to-day 

 is firmly rooted in the minds of whole nations when pugnaciously 

 disposed. 



In trying to account for judicial torture, some have held it a 

 sequel and substitute for the wager of battle, showing a moral 

 advance of ideas in the growth of the nation. But this theory 

 hardly fits with the great antiquity and wide extent of the system. 

 If torture was a sequel of the judicial duel, then it was a case of 

 retrograde evolution ; for the high moral features of the combat, 

 such as faith in divine help, trust in a just cause, fair play, and 

 championship of the innocent, were thrown aside. They were 

 exchanged for a system of mean, cowardly cruelty, all the power 

 of the rulers working out hatred upon one defenseless prisoner in 

 the secrecy and safety of a dungeon vault. 



It is also idle to claim that torture was based on that sophism 

 credited to Jesuits of old, that it was lawful to do evil to attain a 

 good result ; for torture was ancient before Loyola began his 

 work. On the other hand, it is idle to make the common asser- 

 tion that all progress, conscience, and mercy were conferred on 

 the world by some particular religious system or event. For it 



