[82] Rogers, Social Life in Scotland, ii. 35.
[83] Günther, op. cit. ii. 55-57, 65; iii. 79.
[84] Chauveau and Hélie, Théorie du Code Pénal, iii. 394.
[85] See von Liszt, Le droit criminel des états européens, passim; Wrede, Die Körperstrafen bei allen Völkern, passim.
Corporal punishment has generally been, by preference, a punishment for poor and common people or slaves.[86] Blows and abusive language, says Plutarch, seem to be more fitting for slaves than the freeborn.[87] According to the religious law of the Hindus, a Brâhmana shall not suffer corporal punishment for any offence.[88] Among the Hebrews[89] and Muhammedans,[90] among the Romans[91] and in the Middle Ages,[92] the punishment of mutilation could generally be commuted to a fine. For a long period, in Christian Europe, as well as in Pagan Rome during the Empire,[93] the punishment was more savage in proportion as the delinquent was more helpless. “En crimes,” says Loysel, “les villains sont plus griévement punis en leurs corps que les nobles…. Et où le vilain perdroit la vie, ou un membre de son corps, le noble perdra l’honneur, et réponse en cour.”[94] Indeed, whilst the slave incurred the penalty of mutilation for the most trifling offence, the noble might be exempted from corporal punishment of any kind.[95] In a similar manner the social status of a person has influenced his right to bodily integrity with reference to judicial torture. According to the Chinese Penal Code, “it shall not, in any tribunal of government, be permitted to put the question by torture to those who belong to any of the eight privileged classes, in consideration of the respect due to their character.”[96] In Rome, under the Republic, torture was exclusively confined to the slaves.[97] In mediæval Christendom it was made use of to an extent and with a cold-blooded ferocity unknown to any heathen nation, and in cases of heresy and treason it was applied to every class of the community.[98] But the tortures inflicted on the nobles and the clergy were lighter than in the case of ordinary laymen, and proof of a more decided character was required to justify their being exposed to torment.[99] “Noble persons and persons of quality,” says Dumoulin, “cannot so easily be subjected to torture as persons who are of mean and plebeian rank.”[100] Guazzini, an eminent Italian jurisconsult and a recognised expositor of the law of torture in the days of its highest ascendency and ripest maturity, observes that the torment inflicted on a person shall be proportionate to his age, his physical constitution, his mental habits, and his social status;[101] and he adds that bishops and others in high civil dignity are exempt from torture even under strong presumptions of guilt.[102]
[86] See, for instance, the Laws of Manu, viii. 267, 279.
[87] Plutarch, De educatione puerorum, 12.
[88] Baudhâyana, i. 10. 18. 17. Institutes of Vishnu, v. 2.
[89] Günther, op. cit. i. 55.
[90] Ibid. i. 74 sq. Lane, Manners and Customs of the Modern Egyptians, p. 120. Sachau, op. cit. p. 764. According to Muhammedan law, it is not obligatory for the injured party to accept compensation in lieu of mutilation.