In the early stages of society, the judge or the pleader whose faith does not lead him to rely upon an appeal to God naturally seeks to extort from the reluctant witness a statement of what he might desire to conceal, or from the presumed criminal a confession of his guilt. To accomplish this, the readiest means would seem to be the infliction of pain, to escape from which the witness would sacrifice his friends, and the accused would submit to the penalty of his crime. The means of administering graduated and effectual torment would thus be sought for, and the rules for its application would in time be developed into a regular system, forming part of the recognized principles of jurisprudence.
In the earliest civilization, that of Egypt, it would seem as though torture was too opposed to the whole theory of judicial proceedings to be employed, if we are to believe the description which Diodorus Siculus gives of the solemn and mysterious tribunals, where written pleadings alone were allowed, lest the judges should be swayed by the eloquence of the human voice, and where the verdict was announced, in the unbroken silence, by the presiding judge touching the successful suitor with an image of the Goddess of Truth.[1376] Yet a papyrus recently interpreted gives us a judicial record of a trial, in the reign of Rameses IX. of the XXth Dynasty (circa 1200 B. C.), of the robbers of the tomb of the Pharaoh Sebakemsauf, and this shows how the accused, after confession, were tortured for confirmation, first by scourging and then by squeezing the hands and feet, showing that, sometimes at least, this mode of ascertaining the truth was employed.[1377]
Among the Semitic races we find torture used as a regular judicial process by the Assyrians,[1378] though the Mosaic jurisprudence is free from any indication that the Hebrew law-dispensers regarded it as a legitimate expedient. Earnest advocates of the torture system, in the eighteenth century, however, did not hesitate to adduce the ordeal of the bitter water of jealousy as a torture which justified the employment in modern times of the rack and strappado.
In the earliest Aryan records, so far as we can judge from the fragments remaining of the Zoroastrian law, torture had no recognized place. Astyages was rather a Mede than a Persian, and therefore no conclusion can be drawn from his readiness to employ it when he sought to extort the truth from unwilling witnesses, as related by Herodotus;[1379] but the savage punishments which Darius boasts of inflicting upon the rival pretenders to his throne[1380] presuppose a readiness to resort to the most violent means of intimidation, which could scarcely fail to include torture as an extra-judicial means of investigation when milder methods failed.
To the other great branch of the Aryan stock which founded the Indian civilization, torture would likewise seem to have been unknown as a legitimate resource; at least it has left no trace of its existence in the elaborate provisions of the Hindu law as handed down to us for nearly three thousand years. In the Institutes of Manu there are very minute directions as to evidence, the testimony preferred being that of witnesses, whose comparative credibility is very carefully discussed, and when such evidence is not attainable, the parties, as we have seen above, are ordered to be sworn or tried by the ordeal. These principles have been transmitted unchanged to the present day.[1381]
In China the juristic principles in force would seem to allow no place for the use of torture (ante, p. 251), though doubtless it may be occasionally resorted to as an extra-judicial expedient. In Japan it still retains its place in the criminal codes, though we may well believe the assertion that practically its use has been discarded in the progress of modern enlightenment. As to its former employment, however, the directions are very explicit. In the milder form of scourging it might be used in all preliminary examinations. Where reasonable moral certainty existed of guilt in serious and capital crimes, the severer inflictions, by fire, by various mechanical devices, by deprivation of food and sleep or by exposure to venomous reptiles, could be invoked to extort confession, the accused being notified in advance that it would be used if he persisted in asserting his innocence, and the official ordering it being held personally responsible for its undue or improper employment.[1382]
[CHAPTER II.]
GREECE AND ROME.
The absence of torture from the codes of the elder Aryan races is not to be attributed to any inherent objection to its use, but rather to the employment of the ordeal, which in all ages formed part of their jurisprudence, and served as an unfailing resort in all doubtful cases. When we turn to the Aryans who established themselves in Europe and abandoned the ancestral custom of the ordeal, we find it at once replaced by the use of torture. Thus in Greece torture was thoroughly understood and permanently established. The oligarchical and aristocratic tendencies, however, which were so strongly developed in the Hellenic commonwealths, imposed upon it a limitation characteristic of the pride and self-respect of the governing order. As a general rule, no freeman could be tortured. Even freedmen enjoyed an exemption, and it was reserved for the unfortunate class of slaves, and for strangers who formed no part of the body politic. Yet there were exceptions, as among the Rhodians, whose laws authorized the torture of free citizens; and in other states it was occasionally resorted to, in the case of flagrant political offences; while the people, acting in their supreme and irresponsible authority, could at any time decree its application to any one irrespective of privilege. Thus, when Hipparchus was assassinated by Harmodius, Aristogiton was tortured to obtain a revelation of the plot, and several similar proceedings are related by Valerius Maximus as occurring among the Hellenic nations.[1383] The inhuman torments inflicted on Philotas, son of Parmenio, when accused of conspiracy against Alexander, show how little real protection existed when the safety of a despot was in question; and illustrations of torture decreed by the people are to be seen in the proceedings relative to the mutilation of the statues of Hermes, and in the proposition, on the trial of Phocion, to put him, the most eminent citizen of Athens, on the rack.
In a population consisting largely of slaves, who were generally of the same race as their masters, often men of education and intelligence and employed in positions of confidence, legal proceedings must frequently have turned upon their evidence, in both civil and criminal cases. Their evidence, however, was inadmissible, except when given under torture, and then, by a singular confusion of logic, it was estimated as the most convincing kind of testimony. Consequently, the torturing of slaves formed an important portion of the administration of Athenian justice. Either party to a suit might offer his slaves to the torturer or demand those of his opponent, and a refusal to produce them was regarded as seriously compromising. When both parties tendered their slaves, the judge decided as to which of them should be received. Even without bringing a suit into court, disputants could have their slaves tortured for evidence with which to effect an amicable settlement.