In 1498, an assembly of notables at Blois drew up an elaborate ordonnance for the reformation of justice in France. In this, the secrecy of the inquisitorial process is dwelt upon with peculiar insistence as of the first importance in all criminal cases. The whole investigation was in the hands of the government official, who examined every witness by himself, and secretly, the prisoner having no knowledge of what was done, and no opportunity of arranging a defence. After all the testimony procurable in this one-sided manner had been obtained, it was discussed by the judges, in council with other persons named for the purpose, who decided whether the accused should be tortured. He could be tortured but once, unless fresh evidence subsequently was collected against him, and his confession was read over to him the next day, in order that he might affirm or deny it. A secret deliberation was then held by the same council, which decided as to his fate.[1624]
This cruel system was still further perfected by Francis I., who, in an ordonnance of 1539, expressly abolished the inconvenient privilege assured to the accused by St. Louis, which was apparently still occasionally claimed, and directed that in no case should he be informed of the accusation against him, or of the facts on which it was based, nor be heard in his defence. Upon examination of the ex parte testimony, without listening to the prisoner, the judges ordered torture proportioned to the gravity of the accusation, and it was applied at once, unless the prisoner appealed, in which case his appeal was forthwith to be decided by the superior court of the locality.[1625] The whole process was apparently based upon the conviction that it was better that a hundred innocent persons should suffer than that one culprit should escape, and it would not be easy to devise a course of procedure better fitted to render the use of torture universal. There was some protection indeed, theoretically at least, in the provision which held the judge responsible when an innocent prisoner was tortured without sufficient preliminary proof to justify it; but this salutary regulation, from the very nature of things, could not often be enforced, and it was so contrary to the general spirit of the age that it soon became obsolete. Thus, in Brittany, perhaps the most independent of the French provinces, the Coutumier, as revised in 1539, retains such a provision,[1626] but it disappears in the revision of 1580.
But even this was not all. Torture, as thus employed to convict the accused, became known as the question préparatoire; and, in defiance of the old rule that it could be applied but once, a second application, known as the question définitive or préalable, became customary, by which, after condemnation, the prisoner was again subjected to the extremity of torment in order to discover whether he had any accomplices, and, if so, to identify them. In this detestable practice we find another instance of the unfortunate influence of the Inquisition in modifying the Roman law. The latter expressly and wisely provided that no one who had confessed should be examined as to the guilt of another;[1627] and in the ninth century the authors of the False Decretals had emphatically adopted the principle, which thus became embodied in ecclesiastical law,[1628] until the ardor of the Inquisition in hunting down heretics caused it to regard the conviction of the accused as a barren triumph unless he could be forced to incriminate his possible associates. It thus finally became a rule of the Inquisition, promulgated by papal authority, that all who confessed or were convicted should be tortured at the discretion of the inquisitor to reveal the names of their accomplices.[1629]
Torture was also generically divided into the question ordinaire and extraordinaire—a rough classification to proportion the severity of the infliction to the gravity of the crime or the urgency of the case. Thus, in the most usual kind of torment, the strappado, popularly known as the Moine de Caen, the ordinary form was to tie the prisoner’s hands behind his back with a piece of iron between them; a cord was then fastened to his wrists by which, with the aid of a pulley, he was hoisted from the ground with a weight of one hundred and twenty-five pounds attached to his feet. In the extraordinary torture, the weight was increased to two hundred and fifty pounds, and when the victim was raised to a sufficient height he was dropped and arrested with a jerk that dislocated his joints, the operation being thrice repeated.[1630]
Thus, in 1549, we see the system in full operation in the case of Jacques de Coucy, who, in 1544, had surrendered Boulogne to the English. This was deemed an act of treachery, but he was pardoned in 1547; yet, notwithstanding his pardon, he was subsequently tried, convicted, condemned to decapitation and quartering, and also to the question extraordinaire to obtain a denunciation of his accomplices.[1631]
When Louis XIV., under the inspiration of Colbert, remoulded the jurisprudence of France, various reforms were introduced into the criminal law, and changes both for better and worse were made in the administration of torture. The Ordonnance of 1670 was drawn up by a committee of the ablest and most enlightened jurists of the day, and it is a melancholy exhibition of human wisdom when regarded as the production of such men as Lamoignon, Talon, and Pussort. The cruel mockery of the question préalable was retained; and in the principal proceedings all the chances were thrown against the prisoner. All preliminary testimony was still ex parte. The accused was heard, but he was still examined in secret. Lamoignon vainly endeavored to obtain for him the advantage of counsel, but Colbert obstinately refused this concession, and the utmost privilege allowed the defence was the permission accorded to the judge, at his discretion, to confront the accused with the adverse witnesses. In the question préliminaire, torture was reserved for capital cases, when the proof was strong and yet not enough for conviction. During its application it could be stopped and resumed at the pleasure of the judge, but if the accused were once unbound and removed from the rack, it could not be repeated, even though additional evidence were subsequently obtained.[1632]
It was well to prescribe limitations, slender as these were; but in practice it was found impossible to enforce them, and they afforded little real protection to the accused when judges, bent upon procuring conviction, chose to evade them. A contemporary whose judicial position gave him every opportunity of knowing the truth, remarks: “They have discovered a jugglery of words and pretend that though it may not be permissible to repeat the torture, still they have a right to continue it, though there may have been an interval of three whole days. Then, if the sufferer, through good luck or by a miracle, survives this reduplication of agony, they have discovered the notable resource of nouveaux indices survenus, to subject him to it again without end. In this way they elude the intention of the law, which sets some bounds to these cruelties and requires the discharge of the accused who has endured the question without confession, or without confirming his confession after torture.”[1633] Nor were these the only modes by which the scanty privileges allowed the prisoner were curtailed in practice. In 1681, a royal Declaration sets forth that, in the jurisdiction of Grenoble, judges were in the habit of refusing to listen to the accused, and of condemning him unheard, an abuse which was prohibited for the future. Yet other courts subsequently assumed that this prohibition was only applicable to the Parlement of Grenoble, and in 1703 another Declaration was necessary to enforce the rule throughout the kingdom.[1634]
The Ordonnance of 1670, moreover, gave formal expression to another abuse which was equally brutal and illogical—the employment of torture avec réserve des preuves. When the judge resolved on this, the silence of the accused under torment did not acquit him, though the whole theory of the question lay in the necessity of confession. He simply escaped the death penalty, and could be condemned to any other punishment which the discretion of the judge might impose, thus presenting the anomaly of a man neither guilty nor innocent, relieved from the punishment assigned by the law to the crime for which he had been arraigned, and condemned to some other penalty without having been convicted of any offence. This punishing for suspicion was no new thing. Before torture came fully into vogue, in the early part of the fourteenth century, a certain Estevenes li Barbiers of Abbeville was banished under pain of death for suspicion of breach of the peace, and was subsequently tried, acquitted, and allowed to return.[1635] About the same period a barber of Anet and his sons were arrested by the monks of St. Martin-des-Champs on suspicion of killing a guard who was keeping watch over some hay. The evidence against them was insufficient, and they were taken to the gallows as a kind of moral torture not infrequently used in those days. Still refusing to confess, they were banished forever under pain of hanging, because, as the record ingenuously states, the crime was not fully proved against them.[1636] So in the records of the Parlement of Paris there is a sentence rendered in 1402 against Jehan Dubos, a procureur of the Parlement, and Ysabelet his wife, for suspicion of the poisoning of another procureur, Jehan le Charron, the first husband of Ysabelet, and Dubos was accordingly hanged, while his wife was burnt.[1637] Jean Bodin, one of the clearest intellects of the sixteenth century, lays it down as a rule that the penalty should be proportioned to the proof; he ridicules as obsolete the principle that when the evidence is not sufficient for conviction the accused should be discharged, and mentions stripes, fines, imprisonment, the galleys, and degradation as proper substitutes for death when there is no evidence and only violent presumption. He gives in illustration of this a case personally known to him of a noble of Le Mans, who was condemned to nine years of the galleys for violent suspicion of murder.[1638] The application to the torture-process of this determination not to allow a man to escape unless his innocence was proved led to the illogical system of the réserve des preuves.
The theory on which the doctors of the law proceeded was that if there were evidence sufficient for conviction and the judge yet tortured the criminal in surplusage without obtaining a confession, the accused could not be condemned to the full punishment of his offence, because the use of torture in itself weakened the external proofs, and therefore the culprit must be sentenced to some lighter punishment—a refinement worthy of the inconsequential dialectics of the schools.[1639] The cruel absurdities which the system produced in practice are well illustrated by a case occurring in Naples in the sixteenth century. Marc Antonio Maresca of Sorrento was tried by the Admiralty Court for the murder of a peasant of Miani, in the market-place. The evidence was strong against him, but there were no eye-witnesses, and he endured the torture without confession. The court asserted that it had reserved the evidence, and condemned him to the galleys for seven years. He appealed to the High Court of the royal council, and the case was referred to a distinguished jurisconsult, Tomaso Grammatico, a member of the council. The latter reported that he must be considered as innocent, after having passed through torture without confession, and denied the right of the court to reserve the evidence. Then, with an exhibition of the peculiar logic characteristic of the criminal jurisprudence of the time, he concluded that Maresca might be relegated to the islands for five years, although it was a recognized principle of Neapolitan law that torture could be inflicted only in accusations of crimes of which the penalty was greater than relegation. The only thing necessary to complete this tissue of legal wisdom was afforded by the council, which set aside the judgment of the Admiralty Court, rejected the report of their colleague, and condemned the prisoner to the galleys for three years.[1640] Somewhat less complicated in its folly, but more inexcusable from its date, was the sentence of the court of Orléans in 1740, by which a man named Barberousse, from whom no confession had been extorted, was condemned to the galleys for life, because, as the sentence declared, he was strongly suspected of premeditated murder.[1641] A more pardonable, but not more reasonable, example occurred at Halle in 1729, where a woman accused of infanticide refused to confess, and as she labored under a physical defect which rendered the application of torture dangerous to life, the authorities, after due consideration and consultation of physicians, spared her the torture and banished her without conviction.[1642]