Note 33 — BOOK VI. CONCERNING CRIMES AND TORTURES.

Ignorance, inhumanity, and contemptuous disregard of the principles underlying the law of evidence, have, in all ages, impelled semi-barbarians and churchmen to the employment of torture. The absolute unreliability of such a means of eliciting truth, one would naturally suppose would cause it to be rejected by nations in the enjoyment of advanced educational facilities and occupying a high rank in the scale of civilization. Such, however, was far from being the case. An inheritance of the atrocities of the Inquisition, it was still used in France and Spain during the eighteenth century. In Scotland, which was subject to the Civil Law, it was not forbidden until the time of Queen Anne. Although prohibited by Magna Charta, and absolutely unknown to the Common Law of England, torture was, nevertheless, frequently employed as late as the reign of Charles I. A form of it, the peine forte et dure, applied where a prisoner accused of felony stood mute, was authorized by the Statute I, 3, Edward I. During the reign of the tyrannical Henry VIII, the question was in high favor with that monarch and his legal advisers, and the public tormentor, while his profession carried with it the highest possible degree of execration and infamy, was the object of both fear and adulation among the rabble. Such famous lawyers as Sir Edward Coke and Sir Francis Bacon, were earnest advocates of the efficacy of the rack in extorting evidence from recalcitrant witnesses and suspected traitors. In none of the above mentioned instances, were any restraints imposed upon the zeal or malevolence of those entrusted with the application of this relic of barbarian procedure. Under the judicial system of the Visigoths, however, the abuse of torture, or even negligence in its employment, was severely punished; and sometimes, as may be seen from the above, retribution was exacted by the no less iniquitous Lex Talionis. Pecuniary compensation for damages sustained through malice, or neglect of proper care, or where an innocent person was put to the torture, while an inadequate return for the wrong inflicted, was not, under similar circumstances, sanctioned by the customs and practice of more cultured nations, nine centuries subsequently. As a slave was a chattel, he possessed no civil rights, and his master, for this reason, had the privilege to compound his offence, if it were not of too serious a character. The fixing of a prescribed limit, in the value of the property involved, for less than which the question could not be employed, is derived from the arbitrary tariff of fines imposed for the loss of limbs, and other personal injuries, which has always been in use among semi-civilized races. Distinction in point of rank and social position was sedulously observed by the Visigoths in the case of the infliction of torture, as well as in the imposition of penalties for violating the laws and in all subjection to civil disabilities. The worse than useless character of this mode of examination was never considered by mediæval authorities, although it was ably set forth many centuries previously by Cicero, in the following terse and vigorous language: “Regit quæsitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur.”—[Ed.]