Superstition and Force / Essays on the Wager of Law, the Wager of Battle, the Ordeal, Torture

by Henry Charles Lea

Another positive rule was that torture could only be applied in accusations involving life or limb.[1676] Thus, for instance, in provinces where usury was punishable only by confiscation, torture could not be used to prove it, but where it entailed also some corporal infliction, the accused could be subjected to the rack.[1677] Yet when Bologna undertook to remove the abuses of her torture system she still allowed it in cases involving a pecuniary fine of a hundred lire, or over.[1678] Whipping being a corporal punishment, and yet a much lighter infliction than torture, the legists were divided as to whether a crime for which it was the only penalty was one involving the liability of the accused to torture, but the weight of authority, as usual, leaned to the side of the free employment of the rack.[1679] All these fine-spun distinctions, however, were of little moment, for Senckenberg assures us that he had known torture to be resorted to in mercantile matters, where money only was at stake.[1680] Slaves could always be tortured in civil suits when their testimony was required, and freemen when there was suspicion of fraud;[1681] and it was a general rule of mercantile law that it could be employed in accusations of fraudulent bankruptcy.[1682] How easily, indeed, all these barriers were overleaped is seen in the rule that where the penalty was a fine, and the accused was too poor to pay it, he could be tortured, the torture serving in lieu of punishment. Thus, whether he was innocent or guilty, the judge was determined that he should not escape.[1683] Another method in constant use of evading the limitation in offences which by statute did not involve torture was by depriving him of food in prison, or stripping him of clothes in winter, the slow torment of starvation and cold not being classed legally as torture.[1684]

Equally absolute was the maxim that torture could not be employed unless there was positive proof that crime of some sort had been committed, for its object was to ascertain the criminal and not the crime;[1685] yet von Rosbach remarks that as soon as any one claimed to have lost anything by theft, the judges of his day hastened to torture all suspect, without waiting to determine whether or not the theft had really been committed as assumed;[1686] and von Boden declares that many tribunals were in the habit of resorting to it in cases wherein subsequent developments showed that the alleged crime had really not taken place, a proceeding jocosely characterized by a brother lawyer as putting the cart before the horse, and bridling him by the tail.[1687] The history of torture is full of cases illustrating its effectiveness when thus used. Boyvin du Villars relates that during the war in Piedmont, in 1559, he released from the dungeons of the Marquis of Masserano an unfortunate gentleman who had been secretly kept there for eighteen years, in consequence of having attempted to serve a process from the Duke of Savoy on the marquis. His disappearance having naturally been attributed to foul play, his kindred prosecuted an enemy of the family, who, under stress of torture, duly confessed to having committed the murder, and was accordingly executed in a town where Masserano himself was residing.[1688] Godelmann relates that a monument in a church in upper Germany, representing a man broken on a wheel, commemorated a case in which two young journeymen set out together to make the accustomed tour of the country. One of them returned alone, clad in the garments of the other, and was suspected of having made way with him. He was arrested, and in the absence of all other evidence was promptly put to the torture, when he confessed the crime in all its details and was executed on the wheel—soon after which his companion returned. Another case was that of a young man near Bremen whose widowed mother lived in adultery with a servant. The son quarrelled with the man, who fled and took service with another employer at a considerable distance. His father, not knowing his departure, accused the youth of murder, and torture speedily drew from the latter a full confession of the crime, including his throwing the corpse into the Weser. Not long after his execution the adulterous serving-man reappeared and was duly put to death, as also was his father, to make amends for the blunder of the law.[1689]

A universal prescription existed that the torment should not be so severe or so prolonged as to endanger life or limb or to injure the patient permanently; but this, like all the other precautions, was wholly nugatory. Senckenberg assures us that he was personally cognizant of cases in which innocent persons had been crippled for life by torture under false accusations;[1690] and the meek Jesuit Del Rio, in his instructions to inquisitors, quietly observes that the flesh should not be wounded nor the bones broken, but that torture could scarce be properly administered without more or less dislocation of the joints.[1691] We may comfort ourselves with the assurance of Grillandus, that cases were rare in which permanent mutilation or death occurred under the hands of the torturer,[1692] and this admission lends point to the advice which Simancas gives to judges, that they should warn the accused, when brought into the torture-chamber, that if he is crippled or dies under the torture he must hold himself accountable for it in not spontaneously confessing the truth[1693]—a warning which was habitually given in the Spanish Inquisition before applying the torture. Von Boden, moreover, very justly points out the impossibility of establishing any rules or limitations of practical utility, when the capacity of endurance varies so greatly in different constitutions, and the executioners had so many devices for heightening or lessening, within the established bounds, the agony inflicted by the various modes of torture allowed by law. Indeed, he does not hesitate to exclaim that human ingenuity could not invent suffering more terrible than was constantly and legally employed, and that Satan himself would be unable to increase its refinements.[1694] In this as in everything else the legists agreed that the discretion of the judge was the sole and final arbiter in deciding whether the accused was “competently” tortured—that is, whether the number and severity of the inflictions were sufficient to purge him of the adverse evidence.[1695]

It is true that the old rules which subjected the judge to some responsibility were still nominally in force. When torture was ordered without a preliminary examination, or when it was excessive and caused permanent injury, the judge was held by some authorities to have acted through malice, and his office was no protection against reclamation for damages.[1696] Zanger also quotes the Roman law as still in force, to the effect that if the accused dies under the torture, and the judge has been either bribed or led away by passion, his offence is capital, while if there had been insufficient preliminary evidence, he is punishable at discretion.[1697] But, on the other hand, Baldo tells us that unless there is evidence of malice the presumption is in favor of the judge in whose hands a prisoner has died or been permanently crippled, for he is assumed to have acted through zeal for justice,[1698] and though there were some authorities who denied this, it seems to have been the general practical conclusion.[1699] The secrecy of criminal trials, moreover, offered an almost impenetrable shield to the judge, and the recital by Godelmann of the various kinds of evidence by which the prisoner could prove the fact that he had been subjected to torture shows how difficult it was to penetrate into the secrets of the tribunals.[1700] According to Damhouder, indeed, the judge could clear himself by his own declaration that he had acted in accordance with the law, and without fraud or malice.[1701] We are therefore quite prepared to believe the assertion of Senckenberg that the rules protecting the prisoner had become obsolete, and that he had seen not a few instances of their violation without there being any idea of holding the judge to accountability,[1702] an assertion which is substantially confirmed by Goetz.[1703]

Not the least of the evils of the system, indeed, was its inevitable influence upon the judge himself. He was required by his office to be present during the infliction of torture, and to conduct the interrogatory personally. Callousness to human suffering, whether natural or acquired, thus became a necessity, and the delicate conscientiousness which should be the moving principle of every Christian tribunal was well-nigh an impossibility.[1704] Nor was this all, for when even a conscientious judge had once taken upon himself the responsibility of ordering a fellow-being to the torture, every motive would lead him to desire the justification of the act by the extortion of a confession;[1705] and the very idea that he might be possibly held to accountability, instead of being a safeguard for the prisoner became a cause of subjecting him to additional agony. Indeed, the prudence of persevering in torture until a confession was reached was at least recognized, if not advised, by jurists, and in such a matter to suggest the idea was practically to recommend it.[1706] Both the good and the evil impulses of the judge were thus enlisted against the unfortunate being at his mercy. Human nature was not meant to face such temptations, and the fearful ingenuity which multiplied the endless refinements of torture testifies how utterly humanity yielded to the thirst of wringing conviction from the weaker party to the unequal conflict, where he who should have been a passionless arbiter was made necessarily a combatant. How completely the prisoner thus became a quarry to be hunted to the death is shown by the jocular remark of Farinacci, a celebrated authority in criminal law, that the torture of sleeplessness, invented by Marsigli, was most excellent, for out of a hundred martyrs exposed to it not two could endure it without becoming confessors as well.[1707] Few, when once engaged in such a pursuit, could be expected to follow the example of the Milanese judge, who resolved his doubts as to the efficacy of torture in evidence by killing a favorite mule, and allowing the accusation to fall upon one of his servants. The man of course denied the offence, was duly tortured, confessed, and persisted in his confession after torture. The judge, thus convinced by experiment of the fallacy of the system, resigned the office whose duties he could no longer conscientiously discharge, and in his subsequent career rose to the cardinalate. The mode in which these untoward results were usually treated is illustrated in another somewhat similar case which was told to Augustin Nicholas at Amsterdam in explanation of the fact that the city was obliged to borrow a headsman from the neighboring towns whenever the services of one were required for an execution. It appears that a young man of Amsterdam, returning home late at night from a revel, sank upon a doorstep in a drunken sleep. A thief emptied his pockets, securing, among other things, a dirk, with which, a few minutes later, he stabbed a man in a quarrel. Returning to the sleeper he slipped the bloody weapon back to its place. The young man awoke, but before he had taken many steps he was seized by the watch, who had just discovered the murder. Appearances were against him; he was tortured, confessed, persisted in confession after torture, and was duly hanged. Soon after the real criminal was condemned for another crime, and revealed the history of the previous one, whereupon the States-General of the United Provinces, using the ordinary logic of the criminal law, deprived the city of Amsterdam of its executioner, as a punishment for a result that was inevitable under the system.[1708]

Slight as were the safeguards with which legislators endeavored to surround the employment of torture, they thus became almost nugatory in practice under a system which, in the endeavor to reduce doubts into certainties, ended by leaving everything to the discretion of the judge. It is instructive to see the parade of insisting upon the necessity of strong preliminary evidence,[1709] and to read the elaborate details as to the exact kind and amount of testimony severally requisite in each description of crime, and then to find that common report was held sufficient to justify torture, or unexplained absence before accusation, prevarication under examination, and even silence; and it is significant of the readiness to resort to the question on the slenderest pretexts when we see judges solemnly warned that an evil countenance, though it may argue depravity in general, does not warrant the presumption of actual guilt in individual cases;[1710] though pallor, under many circumstances, was considered to sanction the application of torture,[1711] even as a pot containing toads, found in the home of a suspected witch, justified her being placed on the rack.[1712] In fact, witchcraft, poisoning, highway robbery, and other crimes difficult of proof, were considered to justify the judge in proceeding to torture on lighter indications than offences in which evidence was more readily obtainable.[1713] Subtle lawyers thus exhausted their ingenuity in discussing all possible varieties of indications, and there grew up a mass of confused rules, wherein, on many points, each authority contradicted the other. In a system which thus waxed so complex, the discretion of the judge at last became the only practical guide, and the legal writers themselves acknowledge the worthlessness of the rules so laboriously constructed when they admit that it is left for his decision to determine whether the indications are sufficient to warrant the infliction of torture.[1714] How absolute was this discretion, and how it was exercised, is manifest when Damhouder declares that in his day bloodthirsty judges were in the habit of employing the severest torture without sufficient proof or investigation, boasting that by its means they could extract a confession of everything.[1715] This fact was no novelty, for the practice had existed, we may say, since the first introduction of torture. Ippolito dei Marsigli early in the sixteenth century speaks of judges habitually torturing without preliminary evidence, and goes so far as to assert, with all the weight of his supreme authority, that a victim of such wrongs if he killed his inhuman judge could not be held guilty of homicide nor be punished with death for the slaying.[1716] It was perhaps to avoid this responsibility that some of these zealous law-despisers resorted to the most irregular means to procure evidence. Godelmann and von Rosbach both tell us that the magistrates of their time, in the absence of all evidence, sometimes had recourse to sorcerers and to various forms of divination in order to obtain proof on which they could employ the rack or strappado. Boys whose shoes were newly greased with lard were thought to have a special power of detecting witches, and enthusiastic judges accordingly would sometimes station them, after duly anointing their boots, at the church doors, so that the luckless wretches could not get out without being recognized.[1717]

How shocking was the abuse made of this arbitrary power is well illustrated by a case which occurred in the Spanish colony of New Granada about the year 1580. The judges of the royal court of Santafé had rendered themselves odious by their cruelty and covetousness, when one morning some pasquinades against them were found posted in the public plaza. Diligent search failed to discover the author, but a victim was found in the person of a young scrivener whose writing was thought to bear some resemblance to that of the offensive papers. He was at once seized, and though libel was not an offence under the civil law which justified the application of torture, he was ordered to the rack, when he solemnly warned the judge deputed to inflict it that if he should die under it he would summon his tormentor to answer in the presence of God within three days. The judge was intimidated and refused to perform the office, but another was found of sterner stuff, who duly performed his functions without extracting a confession, and the accused was discharged. Then a man who desired to revenge himself on an enemy asserted that the writing of the latter was like that of the pasquinades. Juan Rodriguez de los Puertos, the unfortunate thus designated, was immediately arrested with all his family. An illegitimate son was promptly tortured, and stated that his father had written the libels and ordered him to post them. Then Juan himself was ordered to the rack, but, while protesting his innocence, he begged rather to be put to death, as he was too old to endure the torment. He was accordingly hanged, and his son was scourged with two hundred lashes. All that was needed to render manifest the hideous injustice of this proceeding was developed a few years later, when the judge who was afraid to risk the appeal of the first victim was condemned to death for an assassination, and on the scaffold confessed that he himself had been the author of the libels against his brother justices.[1718]

Such a system tends of necessity to its own extension, and it is therefore not surprising to find that the aid of torture was increasingly invoked. The prisoner who refused to plead, whether there was any evidence against him or not, could be tortured until his obstinacy gave way.[1719] Even witnesses were not spared, whether in civil suits or criminal prosecutions.[1720] It was discretionary with the judge to inflict moderate torture on them when the truth could not otherwise be ascertained. Witnesses of low degree could always be tortured for the purpose of supplying the defect in their testimony arising from their condition of life. Some jurists, indeed, held that no witness of low or vile condition could be heard without torture, but others maintained that poverty alone was not sufficient to render it necessary. Witnesses who were infamous could not be admitted to testify without torture; those of good standing were tortured only when they prevaricated, or when they were apparently committing perjury;[1721] but, as this was necessarily left with the judges to determine, the instructions for him to guide his decision by observing their appearance and manner show how completely the whole case was in his power, and how readily he could extort evidence to justify the torture of the prisoner, and then extract from the latter a confession by the same means. In prosecutions for treason, all witnesses, irrespective of their rank, were liable to torture,[1722] so that when Pius IV., in 1560, was determined to ruin Cardinal Carlo Caraffa, no scruple was felt, during his trial, as to torturing his friends and retainers to obtain the evidence upon which he was executed.[1723] There was a general rule that witnesses could not be tortured until after the examination of the accused, because, if he confessed, their evidence was superfluous; but there were exceptions even to this, for if the criminal was not within the power of the court, witnesses could be tortured to obtain evidence against him in his absence.[1724] Indeed, in the effort made early in the sixteenth century to reform the abuse of torture in Bologna, it was provided that if there were evidence to show that a man was acquainted with a crime he could be tortured to obtain evidence on which to base a prosecution, and this before any proceedings had been commenced against the delinquent.[1725] Evidently there was no limit to the uses to which torture could be put by a determined legislator.

An ingenious plan was also adopted by which, when two witnesses gave testimony irreconcilable with each other, their comparative credibility was tested by torturing both simultaneously in each other’s presence.[1726] Evidence given under torture was esteemed the best kind, and yet with the perpetually recurring inconsistency which marks this branch of criminal law it was admitted that the spontaneous testimony of a man of good character could outweigh that of a disreputable person under torment.[1727] Witnesses, however, could not be tortured more than three times;[1728] and it was a question mooted between jurists whether their evidence thus given required, like the confession of an accused person, to be subsequently ratified by them.[1729] A reminiscence of Roman law, moreover, is visible in the rule that no witness could be tortured against his kindred to the seventh degree, nor against his near connections by marriage, his feudal superiors, or other similar persons.[1730]

There doubtless was good reason underlying the Roman rule, universally followed by modern legists, that, whenever several parties were on trial under the same accusation, the torturer should commence with the weakest and tenderest, for thus it was expected that a confession could soonest be extracted; but this eager determination to secure conviction gave rise to a refinement of cruelty in the prescription that if a husband and wife were arraigned together, the wife should be tortured first, and in the presence of her husband; and if a father and son, the son before his father’s face.[1731]