1832 Jardine, pp. 53, 57-8.

It is rather remarkable to find torture legalized at this period, even in qualified form of the question définitive in the Colony of Massachusetts. The Body of Liberties, enacted in 1641, declares:—

“45. No man shall be forced by Torture to confesse any crime against himselfe nor any other, unlesse it be in some Capitall case where he is first fully convicted by cleare and suffitient evidence to be guilty, After which if the case be of that nature, That it is very apparent there be other conspiritours or confederates with him, Then he may be tortured, yet not with such Tortures as be Barbarous and inhumane.”—Whitmore’s Colonial Laws of Massachusetts, Boston, 1889 (N. Y. Nation, No. 1268, p. 318).

From this it would appear safe to conclude that this is a limitation on a pre-existing, more general use of torture.

1833 Jardine, p. 65.

1834 Lecky, Hist. of Rationalism, Am. ed. I. 122.—In his very interesting work, Mr. Lecky mentions a case, occurring under the Commonwealth, of an aged clergyman named Lowes, who, after an irreproachable pastorate of fifty years, fell under suspicion. “The unhappy old man was kept awake for several successive nights, and persecuted ‘till he was weary of his life, and was scarcely sensible of what he said or did.’ He was then thrown into the water, condemned, and hung.”—Ibid. p. 126.

1835 Cobbett’s State Trials, VI. 686.—Although ostensibly not used to extort confession, this pricking was practically regarded as a torture. Thus in 1677 the Privy Council of Scotland “found that they (i. e., the inferior magistracy) might not use any torture by pricking or by withholding them from sleep” (loc. cit.).

1836 Spottiswoode Miscellany, Edinburgh, 1845, II. 67.

1837 Rogers’s Scotland, Social and Domestic, p. 266.

1838 Statut. Roberti III. cap. xvi. (Skene).

1839 Lecky, op. cit. I. 145-6.—Rogers, op. cit. pp. 267-300.

1840 I quote from Mr. Lecky (p. 147), who gives as his authority “Pitcairn’s Criminal Trials of Scotland.”

“But others and perhaps worse trials were in reserve. The three principal that were habitually applied were the penniwinkis, the boots, and the caschielawis. The first was a kind of thumbscrew; the second was a frame in which the leg was inserted, and in which it was broken by wedges driven in by a hammer; the third was also an iron frame for the leg, which was from time to time heated over a brazier. Fire matches were sometimes applied to the body of the victim. We read, in a contemporary legal register, of one man who was kept for forty-eight hours in ‘vehement tortour’ in the caschielawis; and of another who remained in the same frightful machine for eleven days and eleven nights, whose legs were broken daily for fourteen days in the boots, and who was so scourged that the whole skin was torn from his body.” These cases occurred in 1596.

These horrors are almost equalled by those of another trial in which a Dr. Fian was accused of having caused the storms which endangered the voyage of James VI. from Denmark in 1590. James personally superintended the torturing of the unhappy wretch, and after exhausting all the torments known to the skill and experience of the executioners, he invented new ones. All were vain, however, and the victim was finally burnt without confessing his ill-deeds (Ibid. p. 123).

1841 Rogers, op. cit. p. 307.

1842 Diurnal of Occurrences in Scotland (Spottiswoode Miscellany, II. 90-91).

1843 7 Anne c. 21.—While thus legislating for the enlightenment of Scotland, the English majority took care to retain the equally barbarous practice of the peine forte et dure. This was commenced in 1275 simply as a “prisone forte et dure” (First Statute of Westminster, cap. xii.; Cf. Britton, cap. xi.) for felons refusing to plead, and speedily developed into starvation and nakedness (Fleta, Lib. I. cap. xxxii. § 33). Horne (Myrror of Justice, cap. I. § viii.; cap. II. § ix.) evidently regards as illegal “le horrible et perillous lien,” and treats as murder a death occasioned by it. In spite of this protest the process was rendered still more barbarous by piling weights of iron on the poor wretch, and finally the device of a press was adopted in which he was squeezed. In this shape it lost its original justification of wearing out his endurance and forcing him to plead either guilty or not guilty, and became a simple punishment of peculiar atrocity, for, after its commencement the prisoner was not allowed to plead, but was kept under the press until death, “donec oneris, frigoris atque famis cruciatu extinguitur” (Hale, Placit. Coron. c. xliii.). This relic of modern barbarism was not abolished until 1772, by 12 Geo. III. c. 20. The only case of its employment in America is said to have been that of Giles Cory, in 1692, during the witchcraft epidemic. Knowing the hopelessness of the trials, he refused to plead, and was duly pressed to death (Cobbett’s State Trials, VI. 680).

When the peine forte et dure had become simply a punishment, it was sometimes replaced by a torture consisting of tying the thumbs together with whipcord until the endurance of the accused gave way and he consented to plead. This practice continued at least until so late as 1734. See an interesting essay by Prof. James B. Thayer, Harvard Law Review, Jan. 1892.

1844 Rogers, op. cit. p. 301.

1845 Herzog, Abriss der Gesammten Kirchengeschichte, II. 346.

1846 His arguments are quoted and controverted by Simancas, Bishop of Badajos, in his Cathol. Institut. Tit. LXV. No. 7, 8.

1847 Essais, Liv. II. chap. v.—This passage is little more than a plagiarism on St. Augustin, de Civ. Dei Lib. XIX. cap. vi.—Montaigne further illustrates his position by a story from Froissart (Liv. IV. ch. lviii.), who relates that an old woman complained to Bajazet that a soldier had foraged on her. The Turk summarily disposed of the soldier’s denial by causing his stomach to be opened. He proved guilty—but what had he been found innocent?

1848 Bayle, Dict. Hist. s. v. Grevius.—Gerstlacheri Comment. de Quæst. per Torment. Francof. 1753, pp. 25-6.

1849 Frid. Kelleri Paradoxon de Tortura in Christ. Repub. non exercenda. Reimp. Jenæ, 1688.

1850 Déclaration du 24 Août, 1780 (Isambert, XXVII. 374).

1851 Nicolas is careful to assert his entire belief in the existence of sorcery and his sincere desire for its punishment, and he is indignant at the popular feeling which stigmatized those who wished for a reform in procedure as “avocats des sorciers.”

1852 Dict. Histor. s. v. Grevius.

1853 Bernhardi Diss. Inaug. cap. II. §§ iv. x.—Bernhardi ventured on the use of very decided language in denunciation of the system.—“Injustam, iniquam, fallacem, insignium malorum promotricem, et denique omni divini testimonii specie destitutam esse hanc violentam torturam et proinde ex foris Christianorum rejiciendam intrepide assero” (Ibid. cap. I. § 1).

1854 Meyer, Institutions Judiciaires, IV. 297. Even, then, however, the inquisitorial process was not abolished, and criminal procedure continued to be secret. For the rack and strappado were substituted prolonged imprisonment and other expedients to extort confession; and in 1803 direct torture was used in the case of Hendrik Janssen, executed in Amsterdam on the strength of a confession extracted from him with the aid of a bull’s pizzle.

1855 An enumeration of the opponents of torture may be found in Gerstlacher’s Comment. de Quæst. per Tormenta, pp. 24-30, and Werner’s Dissert. de Tortura Testium, pp. 28-31.

1856 M. A. Engel de Tortura ex Foris Christ. non proscribenda. Lipsiæ, 1733.

1857 Jo. Frid. Werner Dissert. de Tortura Testium, Erford. 1724. Reimpr. Lipsiæ, 1742.

1858 Carlyle, Hist. Friedrich II. Book XI. ch. i.

1859 I find this statement in an account by G. F. Günther (Lipsiæ, 1838) of the abolition of torture in Saxony.

1860 Günther, op. cit.

1861 Gerstlacheri Comment. de Quæst. per Tormenta, Francofurti, 1753, p. 56.

1862 Goetzii Dissert. de Tortura, Lipsiæ, 1742, p. 24.

1863 Constitutio Criminalis Theresiana, Wien, 1769.

1864 Du Boys, Droit Criminel des Peuples Modernes, I. 620.

1865 Instructions addressées par sa Majesté l’Impératrice de toutes les Russies à la Commission établie pour travailler à l’exécution du projet d’un Nouveau Code de Lois Art. X. §§ 82-87 (Pétersbourg 1769).—See also Grand Instructions of Catherine II., London, 1769, pp. 113-8.

1866 Jardine, Use of Torture in England, p. 3.—Meyer, Institutions Judiciaires, T. I. p. xlvi.—T. II. p. 262.

1867 Groot, Hist. Ecles. y Civil de Nueva Granada II. 79-80.

1868 Toreno, Levantamiento, Guerra y Revolución de España, Paris, 1838, II. 371, 438.

1869 Tant d’habiles gens et tant de beaux génies ont écrit contre cette pratique que je n’ose parler après eux. J’allois dire qu’elle pourroit convenir dans les gouvernements despotiques; où tout qui inspire la crainte entre plus dans les ressorts du gouvernement: j’allois dire que les esclaves, chez les Grecs et chez les Romains—— Mais j’entends la voix de la nature qui crie contre moi.—Liv. VI. ch. xvii.

1870 Desmaze, Pénalités Anciennes, Pièces Justicatives p. 423.

1871 Mary Lafon, Histoire du Midi de la France, T. IV. pp. 325-355.—The theory of the defence was that the murdered man had committed suicide; but this is incompatible with the testimony, much of which is given at length by Mary Lafon, a writer who cannot be accused of any leanings against Protestantism.

1872 Chéruel, Dict. Hist. des Institutions de la France. P. II. p. 1220.

1873 Déclaration du 24 Août 1780 (Isambert, XXVII. 373).

1874 Desmaze, Pénalités Anciennes, pp. 176-77.

1875 Déclaration du 3 Mai 1788, art. 8. “Nôtre déclaration du 24 Août sera exécutée” (Isambert, XXIX. 532).

1876 Louīse, Sorcellerie et Justice Criminelle à Valenciennes, p. 96.

1877 Isambert, XXIX. 529.—It is noteworthy, as a sign of the temper of the times, on the eve of the last convocation of the Notables, that this edict, which introduced various ameliorations in criminal procedure, and promised a more thorough reform, invites from the community at large suggestions on the subject, in order that the reform may embody the results of public opinion—“Nous élèverons ainsi au rang des lois les résultats de l’opinion publique.” This was pure democratic republicanism in an irregular form.

The edict also indicates an intention to remove another of the blots on the criminal procedure of the age, in a vague promise to allow the prisoner the privilege of counsel.

1878 Dei Delitti e delle Pene, § XII.—The fundamental error in the prevalent system of criminal procedure was well exposed in Beccaria’s remark that a mathematician would be better than a legist for the solution of the essential problem in criminal trials—“Data la forza dei muscoli e la sensibilitá delle fibre di un innocente, trovare il grado di dolore che lo farà confessar reo di un dato delitto.”

1879 Carlo di la Varenne, La Tortura in Sicilia, 1860.