The opinions of the best authorities have been in theory almost unanimously against the use of torture, even in a system where it was as completely established as it was in Roman law. “Tormenta,” says Cicero, in words which it is almost impossible to translate satisfactorily, “gubernat dolor, regit quaesitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur.” Seneca says bitterly, “it forces even the innocent to lie.” St Augustine recognizes the fallacy of torture. “If,” says he, “the accused be innocent, he will undergo for an uncertain crime a certain punishment, and that not for having committed a crime, but because it is unknown whether he committed it.” At the same time he regards it as excused by its necessity. The words of Ulpian, in the Digest of Justinian, are no less impressive. “The torture (quaestid) is not to be regarded as wholly deserving or wholly undeserving of confidence; indeed, it is untrustworthy, perilous, and deceptive. For most men, by patience or the severity of the torture, come so to despise the torture that the truth cannot be elicited from them; others are so impatient that they will lie in any direction rather than suffer the torture; so it happens that they depose to contradictions and accuse not only themselves but others.” Montaigne’s i view of torture as a part of the punishment is a most just one :—“All that exceeds a simple death appears to me absolute cruelty; neither can our justice expect that he whom the fear of being executed by being beheaded or hanged will not restrain should be any more awed by the imagination of a languishing fire, burning pincers, or the wheel.” Montesquieu speaks of torture in a most guarded manner, condemning it, but without giving reasons, and eulogizing England for doing without it. The system was condemned by Bayle and Voltaire with less reserve. Among the Italians, Beccaria, Verri, and Manzoni will be found to contain most that can be said on the subject. The influence of Beccaria in rendering the use of torture obsolete was undoubtedly greater than that of any other legal reformer. The great point that he makes is the unfair incidence of torture, as persons’ minds and bodies differ in strength. Moreover, it is, says he, to confound all relations to expect that a man should be both accuser and accused, and that pain should be the test of truth, as though truth resided in the muscles and fibres of a wretch under torture. The result of the torture is simply a matter of calculation. Given the force of the muscles and the sensibility of the nerves of an innocent person, it is required to find the degree of pain necessary to make him confess himself guilty of a given crime. Bentham’s objection to torture is that the effect is exactly the reverse of the intention. “Upon the face of it, and probably enough in the intention of the framers, the object of this institution was the protection of innocence; the protection of guilt and the aggravation of the pressure upon innocence was the real fruit of it.” The apologists of torture, even among jurists, are not numerous. In fact, theoretical objections to it are often urged by the authors of books of practice, as by Damhouder, Von Rosbach, Von

Boden, and Voet. It is worthy of note, however, as illustrative of the feeling of the time, that even Bacon compares experiment in nature to torture in civil matters as the best means of eliciting truth. Muyart de Vouglans derives the origin of torture from the law of God. Other apologists are Simancas, bishop of Badajos, Engel, and in England Sir R. Wiseman. Greece.— The opinion of Aristotle was in favour of torture as a mode of proof. It is, he says, a kind of evidence, and appears to carry with it absolute credibility because a kind of constraint is applied. It is classed as one of the “artless persuasions” (ατeχvαι πάττεις). At Athens slaves, and probably at times resident aliens, were tortured, but it was never applied to free citizens, such application being forbidden by a psephism passed in the archonship of Scamandrius. After the mutilation of the Hermae in 415 b.c. a proposition was made, but not carried, that it should be applied to two senators named by an informer. In this particular case Andocides gave up all his slaves to be tortured. Torture was sometimes inflicted in open court. The rack was used as a punishment even for free citizens. Antiphon was put to death by this means. The torture of Nicias by the Syracusans is alluded to by Thucydides as an event likely to happen, and it was only in order to avoid the possibility of inconvenient disclosures that he was put to death without torture. Isocrates and Lysias refer to torture under the generic name of στρέβλωσές. As might be expected, torture was frequently inflicted by the Greek despots, and both Zeno and Anaxarchus are said to have been put to it by such irresponsible authorities. At Sparta the despot Nabis was accustomed, as we learn from Polybius, to put persons to death by an instrument of torture in the form of his wife Apega, a mode of torture no doubt resembling the Jungfernkuss once in use in Germany.

Pome.— The Roman system was the basis of all subsequent European systems which recognized torture as a part of their procedure. The law of torture was said by Cicero to rest originally on custom (mores majorum). There are frequent allusions to it in the classical writers both of the republic and the empire. The law, as it existed under the later empire, is contained mainly in the titles De Quaestionibus of the Digest and the Code, — the former consisting largely of opinions from the Sententiae Receptee of Paulus, the latter being for the most part merely a repetition of constitutions contained in the Theodosian Code. Both substantive law and procedure were dealt with by these texts of Roman law. the latter, however, not as fullv as in mediaeval codes, a large discretion being left to the judges. Torture was used both in civil and criminal trials, but in the former only upon slaves and freedmen or infamous persons—such as gladiators—and where the truth could not be otherwise elicited, as in cases affecting the inheritance (res hereditariae). Its place in the case of free citizens was taken by the reference to the oath of the party (see Oath). During the republic torture appears to have been confined to slaves in all cases, but with the empire (according to Dion Cassius under Tiberius) a free man became liable to it if accused of a crime, though not as a witness. If a Christian, of however high a condition, he was subject to torture during the period between the edict of Diocletian in 303 and the edict of toleration of Galerius in 311. This short period excepted, the liability of a free man depended upon two conditions, the nature of the accusation and the rank of the accused. On an accusation of treason every one, whatever his rank, was liable to torture, for in treason the condition of all was equal. The same was the case of those accused of sorcery (magi), who were regarded as humani generis inimici. A wife might be tortured (but only after her slaves had been put to the torture) if accused of poisoning her husband. In accusations of crimes other than treason or sorcery, certain persons were protected by the dignity of their position or their tender age. The main exemptions were contained in a constitution of Diocletian and Maximian, and included soldiers, nobles of a particular rank, i.e., eminentissimi and perfectissimi, and their descendants to the third generation, and decuriones and their children to a limited extent—that is to say, they were subject to the torture of the plumbatae in certain cases, such as fraud on the revenue and extortion. In addition to these, priests (but not clergy of a lower rank), children under fourteen, and pregnant women were exempt. A free man could be tortured only where he had been inconsistent in his depositions. No one was to be chained in prison before trial, nor could a prisoner be tortured while awaiting trial. The rules as to the torture of slaves were numerous and precise. It was a maxim of Roman law that torture of slaves was the most efficacious means of obtaining truth. They could be tortured either as accused or as witnesses, but against their masters only in accusations of treason, adultery, frauds on the revenue, coining, and similar offences (which were regarded as a species of treason), attempts by a husband or wife on the life of the other, and in cases where a master had bought a slave for the special reason that he should not give evidence against him. The privilege from accusations by the slave extended to the master’s father, mother, wife, or tutor, and also to a former master. On the same principle a freedman could not be tortured against his patron. The privilege did not apply where the slave was joint property, and one of his masters had been murdered by the other, or where he was the property of a corporation, for in such a case he could be tortured in a charge against a member of the corporation. Slaves belonging to the inheritance could be tortured in actions concerning the inheritance. The adult slaves of a deceased person could be tortured where the deceased had been murdered. In a charge of adultery against a wife, her husband’s, her own, and her father’s slaves could be put to the torture. A slave manumitted for the express purpose of escaping torture was regarded as still liable to it. Before putting a slave to torture without the consent of his master, security must be given to the master for his value. The master of a slave tortured on a false accusation could recover double his value from the accuser. The undergoing of torture had at one time a serious effect upon the after-life of the slave, for in the time of Gaius a slave who had been tortured could on manumission obtain no higher civil rights than those of a dediticius. The rules of procedure were conceived in a spirit of as much fairness as such rules could be. Some of the most important were these. The amount of torture was at the discretion of the judge, but it was to be so applied as not to injure life or limb. The examination was not to begin by torture; other proofs must be exhausted first. The evidence must have advanced so far that nothing but the confession of the slave was wanting to complete it. Those of weakest frame and tenderest age were to be tortured first. Except in treason, the unsupported testimony of a single witness was not a sufficient ground for torture. The voice and manner of the accused were to be carefully observed. A spontaneous confession, or the evidence of a personal enemy, was to be received with caution. Repetition of the torture could only be ordered in case of inconsistent depositions or denial in the face of strong evidence. There was no rule limiting the number of repetitions. Leading questions were not to be asked. A judge was not liable to an action for anything done during the course of the examination. An appeal from an order to torture was competent to the accused, except in the case of slaves, when an appeal could be made only by the master. The appellant was not to be tortured pending the appeal, but was to remain in prison. The principal forms of torture in use were the equuleus, or rack (mentioned as far back as Cicero), the plumbatae, or leaden balls, the ungulae, or .barbed hooks, and the fidiculae, or cord compressing the arm. Other allusions in the Digest and Code, in addition to those already cited, may be shortly noticed. The testimony of a gladiator or infamous person (such as an accomplice) was not valid without torture. This was no doubt the origin of the mediaeval maxims (which were, however, by no means universally recognized),— Vilitas personae est justa causa torquendi testem, and Tortura purgatur infamia. Torture could not be inflicted during the forty days of Lent. Robbers and pirates might be tortured even on Easter Day, the Divine pardon being hoped for where the safety of society was thus assured. Capital punishment was not to be suffered until after conviction or confession under torture. Withdrawal from prosecution (abolitio) was not to be allowed as a rule after the accused had undergone the torture. In charges of treason the accuser was liable to torture if he did not prove his case. The infliction of torture, not judicial, but at the same time countenanced by law, was at one time allowed to creditors. They were allowed to keep their debtors in private prisons, and most cruelly ill-use them, in order to extort payment. Under the empire private prisons were forbidden. In the time of Juvenal, if his sixth satire may be believed, the Roman ladies actually hired the public torturors to torture their domestic slaves. As a part of the punishment torture was in frequent use. Crucifixion, mutilation, exposure to wild beasts in the arena, and other cruel modes of destroying life were common, especially in the time of the persecution of the Christians under Nero. Crucifixion as a punishment was abolished by Constantine in 315, in veneration of the memory of Him who was crucified for mankind. The punishment of mutilation was moderated by Justinian, who forbade amputation of both hands or feet or of any limb, and confined it in future to amputation of one hand. Scourging was inflicted only on slaves; free men were exempt by the Lex Porda and Lex Valeria, except in a few cases, such as that of adultery, the penalty for which was scourging and cutting off the nose. On the other hand, where the interests of the church were concerned, the tendency was in favour of greater severity. Thus, by the Theodosian Code, a heretic was to be flogged with lead {contιtsus plumbo) before banishment, and Justinian made liable to torture and exile any one insulting a bishop or priest in a church. The Church.— As far as it could the church adopted the Roman law, with the important and characteristic difference (dating from the severe edicts of Theodosius the Great in 381) that heresy took the place of treason, it being regarded as a kind of treason against God (“crimen laesae majestatis divinae”). The doctrine of confiscation for treason was so convenient and profitable that it was rapidly adopted by the church. As most instances in which torture was inflicted by ecclesiastical tribunals would be accusations of heresy or Judaism—a specially revolting form of heresy to mediaeval Christians—this theory practically equalized all persons for the purpose of torture, in accordance with the doctrine that in treason all were equal. The church generally secured the almost entire immunity of its clergy, at any rate of the higher ranks, from torture by civil tribunals. In many instances councils of the church pronounced against torture, e.g., in a synod at Rome in 384. Torture even of heretics seems to have been originally left to the ordinary tribunals. Thus a bull of Innocent IV., in 1252, directed the torture of heretics by the civil power, as being robbers and murderers of souls, and thieves of the sacraments of God. The church also enjoined torture for usury. A characteristic division of torture, accepted by the church but not generally acknowledged by lay authorities, was into spiritual and corporal, the latter being simply the imposition of the oath of purgation, the only form originally in use in the ecclesiastical courts. The canon law contains little on the subject of torture, and that little of a comparatively humane nature. It laid down that it was no sin in the faithful to inflict torture, but a priest might not do so with his own hands, and charity was to be used in all punishments. No confession was to be extracted by torture. The principal ecclesiastical tribunal by which torture was inflicted in more recent times was of course the Inquisition· ( q.v.). The code of instructions issued by Torquemada in Spain in 1484 provided that an accused person might be put to the torture if semiplena probatio existed against the accused,—that is, so much evidence as to raise a grave and not merely a light presumption of guilt, often used for the evidence of one eye or ear witness of a fact. If the accused confessed during torture, and afterwards confirmed the confession, he was punished as convicted ; if he retracted, he was tortured again, or subjected to extraordinary punishment. One or two inquisitors, or a commissioner of the Holy Office, were bound to be present at every examination. Owing to the occurrence of certain cases of abuse of torture, a decree of Philip II. was issued, in 1558, forbidding the administration of torture without an order from the council. But this decree does not appear to have been fully observed. By the edict of the inquisitor-general Valdes, in 1561, torture was to be left to the prudence and equity of the judges. They must consider motives and circumstances before decreeing torture, and must declare whether it is to be employed in caput proprium, i.e., to extort a confession, or in caput alienum, i.e., to incriminate an accomplice. The accused was not to be informed of the grounds of torture. He was not to be questioned on a particular fact, but was to be allowed to say what he pleased. Torture was not to be decreed until the termination of the process, and after defence heard, and the decree was subject to appeal, but only in doubtful cases, to the Council of the Supreme. It was also only in doubtful cases that the inquisitors were bound to consult the council; where the law was clear (and of this they were the judges) there need be no consultation, and no appeal was allowed. The judges, the registrar, and the executioners were the only persons allowed to be present at the torture. They were to be careful that the jailer suggested nothing to the accused during the torture. On ratification twenty-four hours afterwards of a confession made under torture, the accused might be reconciled, if the inquisitors believed him to be sincerely repentant. If convicted of bad faith, he might be relaxed, i.e., delivered to the secular power to be burned. The inquisitors...