Grillandus, who seems to have been an unusually humane judge, describes five degrees of torture, using as a standard the favorite strappado. The first is purely mental—stripping the prisoner and tying his hands behind him to the rope, but not hurting him. This can be used when there is no evidence, and he tells us he had found it very efficacious, especially with the timid and infirm. The other grades are indicated in accordance with the strength of the proof and the heinousness of the crime. The second is hoisting the accused and letting him hang for the space of an Ave or a Pater Noster, or even a Miserere, but not elevating him and letting him fall with a jerk. In the third grade this suspension is prolonged. In the fourth he is allowed to hang for a time varying from a quarter of an hour to an hour, according to the crime and the evidence, and he is jerked two or three times. In the fifth and severest form a weight is attached to his feet and he is repeatedly jerked. This Grillandus describes as terrible; the whole body is torn, the limbs are ready to part from the trunk, and death itself is preferable. It should only, he says, be used in the gravest crimes, such as heresy or treason, but we have already seen that it was mild in comparison with many inflictions habitually employed.[1732]
Some facilities for defence were allowed to the accused, but in practice they were almost hopelessly slender. He was permitted to employ counsel, and if unable to do so, it was the duty of the judge to look up testimony for the defence.[1733] After all the adverse testimony had been taken, and the prisoner had been interrogated, he could ask to see a copy of the proceedings, in order to frame a defence; but the request could be refused, in which case, the judge was bound to sift the evidence himself, and to investigate the probabilities of innocence or guilt. Von Rosbach states that judges were not in the habit of granting the request, though no authority justified them in the refusal;[1734] and half a century later this is confirmed by Bernhardi, who gives as a reason that by withholding the proceedings from the accused they saved themselves trouble.[1735] The right of the accused to see the evidence adduced against him was still an open question so recently as 1742, for Goetz deems it necessary to argue at some length to prove it.[1736] The recognized tendency of such a system to result in an unfavorable conclusion is shown by Zanger’s elaborate instructions on this point, and his warning that, however justifiable torture may seem, it ought not to be resorted to without at least looking at the evidence which may be attainable in favor of innocence;[1737] while von Rosbach characterizes as the greatest fault of the tribunals of his day, their neglect to obtain and consider testimony for the accused as well as against him.[1738] Indeed, when the public interest was deemed to require it, all safeguards were withdrawn from the prisoner, as when, in 1719 in Saxony, a mandate was issued declaring that in cases of thieves and robbers no defence or exceptions or delays were to be admitted.[1739] In some special and extraordinary cases, the judge might allow the accused to be confronted with the accuser, but this was so contrary to the secrecy required by the inquisitorial system, that he was cautioned that it was a very unusual course, and one not lightly to be allowed, as it was odious, unnecessary, and not pertinent to the trial.[1740]
Theoretically, there was a right of appeal against an order to inflict torture, but this, even when permitted, could usually avail the accused but little, for the ex parte testimony which had satisfied the lower judge could, of course, in most instances, be so presented to the higher court as to insure the affirmation of the order, and prisoners, in their helplessness, would doubtless feel that by the attempt to appeal they would probably only increase the severity of their inevitable sufferings.[1741] Moreover, such appeals were ingeniously and effectually discouraged by subjecting the advocate of the prisoner to a fine or some extraordinary punishment if the appeal was pronounced to be frivolous;[1742] and some authorities, among which was the great name of Carpzovius, denied that in the inquisitorial process there was any necessity of communicating to the accused the order to subject him to torture and then allow him time to appeal against it if so disposed.[1743]
Slender as were these safeguards in principle, they were reduced in practice almost to a nullity. That the discretion lodged in the tribunals was habitually and frightfully abused is only too evident, when von Rosbach deems it necessary to reprove, as a common error of the judges of his time, the idea that the use of torture was a matter altogether dependent upon their pleasure, “as though nature had created the bodies of prisoners for them to lacerate at will.”[1744] Thus it was an acknowledged rule that when guilt could be satisfactorily proved by witnesses, torture was not admissible;[1745] yet Damhouder feels it necessary to condemn the practice of some judges, who, after conviction by sufficient evidence, were in the habit of torturing the convict, and boasted that they never pronounced sentence of death without having first extorted a confession.[1746] Moreover, the practice was continued which we have seen habitual in the Châtelet of Paris in the fourteenth century, whereby, after a man had been duly convicted of a capital crime, he was tortured to extract confessions of any other offences of which he might be guilty;[1747] and as late as 1764, Beccaria lifts his voice against it as a still existing abuse, which he well qualifies as senseless curiosity, impertinent in the wantonness of its cruelty.[1748] Martin Bernhardi, writing in 1705, asserts that this torture after confession and conviction was also resorted to in order to prevent the convict from appealing from the sentence.[1749] So, although a man who freely confessed a crime could not be tortured, according to the general principle of the law, still, if in his confession he adduced mitigating circumstances, he could be tortured in order to force him to withdraw them;[1750] and, moreover, if he were suspected of having accomplices and refused to name them, he could be tortured as in the question préalable of the French courts.[1751] Yet the accusation thus obtained was held to be of so little value that it only warranted the arrest of the parties incriminated, who could not legally be tortured without further evidence.[1752] In the face of all this it seems like jesting mockery to find these grim legists tenderly suggesting that the prisoner should be tortured only in the morning lest his health should suffer by subjecting him to the question after a full meal.[1753]
If the practice of the criminal courts had been devised with the purpose of working injustice under the sacred name of law it could scarce have been different. Even the inalienable privilege of being heard in his defence was habitually refused to the accused by many tribunals, which proceeded at once to torture after hearing the adverse evidence, a refinement of cruelty and injustice which called forth labored arguments by von Rosbach and Simancas to prove its impropriety, thus showing it to be widely practised.[1754] In the same way, the right to appeal from an order to torture was evaded by judges, who sent the prisoner to the rack without a preliminary formal order, thus depriving him of the opportunity of appealing.[1755] Indeed, in time it was admitted by many jurists that the judge at his pleasure could refuse to allow an appeal; and that in no case was he to wait more than ten days for the decision of the superior tribunal.[1756]
The frequency with which torture was used is manifested in the low rate which was paid for its application. In the municipal accounts of Valenciennes, between 1538 and 1573, the legal fee paid to the executioner for each torturing of a prisoner is only two sous and a half, while he is allowed the same sum for the white gloves worn at an execution, and ten sous are given him for such light jobs as piercing the tongue.[1757]
With all this hideous accumulation of cruelty which shrank from nothing in the effort to wring a confession from the wretched victim, that confession, when thus so dearly obtained, was estimated at its true worthlessness. It was insufficient for conviction unless confirmed by the accused in a subsequent examination beyond the confines of the torture-chamber, at an interval of from one to three days.[1758] This confirmation was by no means universal, and the treatment of cases of retracted confession was the subject of much debate. Bodin, in 1579, complains that witches sometimes denied what they had confessed under torture, and that the puzzled judge was then obliged to release them.[1759] Such a result, however, was so totally at variance with the determination to obtain a conviction which marks the criminal jurisprudence of the period that it was not likely to be submitted to with patience. Accordingly the general practice was that, if the confession was retracted, the accused was again tortured, when a second confession and retraction made an exceedingly awkward dilemma for the subtle jurisconsults. They agreed that he should not be allowed to escape after giving so much trouble. Some advocated the regular punishment of his crime, others demanded for him an extraordinary penalty; some, again, were in favor of incarcerating him;[1760] others assumed that he should be tortured a third time, when a confession, followed as before by a recantation, released him from further torment, for the admirable reason that nature and justice alike abhorred infinity.[1761] This was too metaphysical for some jurists, who referred the whole question to the discretion of the judge, with power to prolong the series of alternate confession and retraction indefinitely, acting doubtless on the theory that most prisoners were like the scamp spoken of by Ippolito dei Marsigli, who, after repeated tortures and revocations, when asked by the judge why he retracted his confession so often, replied that he would rather be tortured a thousand times in the arms than once in the neck, for he could easily find a doctor to set his arm but never one to set his neck.[1762] The magistrates in some places were in the habit of imprisoning or banishing such persons, thus punishing them without conviction, and inflicting a penalty unsuited to the crime of which they were accused.[1763] Others solved the knotty problem by judiciously advising that in the uncertainty of doubt as to his guilt, the prisoner should be soundly scourged and turned loose, after taking an oath not to bring an action for false imprisonment against his tormentors;[1764] but, according to some authorities, this kind of oath, or urpheda as it was called, was of no legal value.[1765] Towards the end of the torture system, however, the more humane though not very logical doctrine prevailed in Germany that a retraction absolved the accused, unless new and different evidence was brought forward, and this had to be stronger and clearer than before, for the presumption of innocence was now with the accused, the torture having purged him of former suspicion.[1766]
This necessity of repeating a confession after torture gave rise to another question which caused considerable difference of opinion among doctors, namely, whether witnesses who were tortured had to confirm their evidence subsequently, and whether they, in case of retraction or the presentation of fresh evidence, could be tortured repeatedly. As usual in doubts respecting torture, the weight of authority was in favor of its most liberal use.[1767]
There were other curious inconsistencies in the system which manifest still more clearly the real estimate placed on confessions under torture. If the torture had been inflicted by an over-zealous judge without proper preliminary evidence, confession amounted legally to nothing, even though proofs were subsequently discovered.[1768] If, on the other hand, absolute and incontrovertible proof of guilt were had, and the over-zealous judge tortured in surplusage without extracting a confession, there arose another of the knotty points to which the torture system inevitably tended and about which jurisconsults differed. Some held that he was to be absolved, because torture purged him of all the evidence against him; others argued that he was to be punished with the full penalty of his crime, because the torture was illegal and therefore null and void; others again took a middle course and decided that he was to be visited, not with the penalty of his crime, but with something else, at the discretion of his judge.[1769] According to law, indeed, torture without confession was a full acquittal; but here, again, practice intervened to destroy what little humanity was admitted by jurists, and the accused under such circumstances was still held suspect, and was liable at any moment to be tried again for the same offence.[1770] Indeed, at a comparatively early period after the introduction of torture, we are told that if the accused endured it without confession he was to be kept in prison to see whether new evidence might not turn up: if none came, then the judge was to assign him a reasonable delay for his defence; he was regularly tried, when if convicted he was punished; if not he was discharged.[1771] If, again, a man and woman were tortured on an accusation of adultery committed with each other, and if one confessed while the other did not, both were acquitted according to some authorities, while others held that the one who confessed should receive some punishment different from that provided for the crime, while the accomplice was to be discharged on taking a purgatorial oath.[1772] Nothing more contradictory and illogical can well be imagined, and, as if to crown the absurdity of the whole, torture after conviction was allowed in order to prevent appeals; and if the unfortunate, at the place of execution, chanced to assert his innocence, he was often hurried from the scaffold to the rack in obedience to the theory that the confession must remain unretracted;[1773] though, if the judge had taken the precaution to have the prisoner’s ratification of his confession duly certified to by a notary and witnesses, this trouble might be avoided, and the culprit be promptly executed in spite of his retraction.[1774] One can scarce repress a grim smile at finding that this series of horrors had pious defenders who urged that a merciful consideration for the offender’s soul required that he should be brought to confess his iniquities in order to secure his eternal salvation.[1775] It was a minor, yet none the less a flagrant injustice, that when a man had endured the torture without confession, and was therefore discharged as innocent, he or his heirs were obliged to defray the whole expenses of his prosecution.[1776]
The atrocity of this whole system of so-called criminal justice is forcibly described by the honest indignation of Augustin Nicolas, who, in his judicial capacity under Louis XIV., had ample opportunities of observing its practical working and results. “The strappado, so common in Italy, and which yet is forbidden under the Roman law ... the vigils of Spain, which oblige a man to support himself by sheer muscular effort for seven hours, to avoid sitting on a pointed iron, which pierces him with insufferable pain; the vigils of Florence, or of Marsiglio, which have been described above; our iron stools heated to redness, on which we place poor half-witted women accused of witchcraft, exhausted by frightful imprisonment, rotting from their dark and filthy dungeons, loaded with chains, fleshless, and half dead; and we pretend that the human frame can resist these devilish practices, and that the confessions which our wretched victims make of everything that may be charged against them are true.”[1777] Under such a scheme of jurisprudence, it is easy to understand and appreciate the case of the unfortunate peasant, sentenced for witchcraft, who, in his dying confession to the priest, admitted that he was a sorcerer, and humbly welcomed death as the fitting retribution for the unpardonable crimes of which he had been found guilty, but pitifully inquired of the shuddering confessor whether one could not be a sorcerer without knowing it.[1778]