TORTURE. 



TORTURE. 



290 



reduced into writing (in tabulas relata), and signed by the praetor 

 (Heineccius, ' Ant. Rom.,' lib. iv., c. 18, sect. 25) ; but private persons 

 also were permitted " in foro domestico " to extract evidence from their 

 slaves by torture. (Cicero, ' Orat. pro Cluentio,' cc. 63, 66 ; Quin- 

 tilian, 'Declam.,' 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 " quoostiones in caput domini," 

 were introduced, and even freemen were subjected to torture, when 

 there was positive evidence of the " corpus delicti," 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 omnin<5," says the 'Digest' (lib. xlviii., tit. 18; 

 ' De Qusestionibus,' sect. 10), " in majeatatis crimine, quod ad personas 

 Principum attinet, cum res exiget, torquentur." (Wassersehleben, 

 ' Historia Quxstionum per Tonnenta apud Romanes,' 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 decretals 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 

 Lcsx majestatis divinte." 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 npostacy, 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- 

 1 'r< >c> sses.') 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 reguo Anglia; nunquam visum fuerit vel 

 auditum ? Et si torquendi sunt, utrum per clericos vel laicos ? Et 

 datii, quud nullus omnino tortor inveniri valeat in Anglia, utrum pro 

 tortoribus mittendum sit ad partes transmarinas ? " (Hemingford, p. 

 256.) In consequence of the doubts of the archbishop, Edward II. 

 refused to allow the inquisitors 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 bad previously done, " quod extunc quitition- 

 arcntiir, ita quod qiuestiones illiC ilLitfO fierent absque mutilatione et 

 debitititione perpctua alicujus membri, et sine violent;! sanguinis 

 ne." (Raynouard, ' Honumens Historiques relatifg a la Con- 

 ilunnation 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 qiwei- 

 '.< 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 

 ' F.rdera,' torn, iii., pp. 2n8, 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 torture was unknown until 

 the end of the 1 4th 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 Niirnberg, Salzburg, 

 Ratisbon, 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 ' Fehingerichte,' which abounded at 

 that period. The regular torture, however, as derived from the Roman 



ABTS AND SCI. BIV. VOL. VUL 



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 prdparatoire " 

 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, Holiushed 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 cases 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 Lainbeth, " was racked in the Tower," aa 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 the 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 Fortescue, who was chief-justice 

 of the court of King's Bench, and wrote his book, ' De Laudibus Legum 

 Anglia;,' 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 ita existence in Englaud. (Fortescue, 

 cap. 22.) Again, Sir Thomas Smith, a very eminent lawyer, statesman, 

 and scholar, who wrote in 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 com- 

 missioners 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 1028, the judges unanimously 

 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 punishment ia 

 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. Possibly the explanation of this incon- 

 sistency between the opinions of lawyers and the practice may be 

 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 tho legal systems derived from it in Germany, Italy, and 

 Spain; and, therefore, in England no judge could by law direct tho 

 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 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 doctriuo asserted so 



