In all this, however, there is no evidence of the revival of torture as a 원주스케일링 means of legal investigation. The community was satisfied with the old barbaric forms of trial, and the Church, still true to its humanizing instincts, lost no opportunity of placing the seal of its disapprobation on the whole theory of extorting confessions. At an early period, it had even been a matter of dispute whether a Christian magistrate, after baptism, was at liberty to inflict torment and pronounce sentence of death. The Synod of Rome in 384 had declared that no Christian could exercise secular power without sin, because he was obliged to contravene the teachings of the Church by ordering the application of torture in judicial pleadings;1530 and if Innocent I., in 405, had decided that such proceedings were lawful, it was only on the ground that the Church had no right to resist the laws or to oppose the powers ordained of God.1531 About the same time St. Augustin had exposed the cruel absurdity of torture with a cogent terseness that has rarely been excelled, and had stamped it with the478 infamy which it deserved.1532 The great name of Gregory I. was on record in the sixth century, denouncing as worthless a confession extorted by incarceration and hunger.1533 When Nicholas I., who did so much to build up ecclesiastical power and influence, addressed, in 866, his well-known epistle to the Bulgarians to aid and direct them in their conversion to orthodoxy, he recites that he is told that, in cases of suspected theft, their courts endeavor to extort confession by stripes, and by pricking with a pointed iron. This he pronounces to be contrary to all law, human and divine, for confessions to be valid should be spontaneous; and he argues at some length on the uncertainty of the system of torture, and the injustice to which it leads, concluding with a peremptory prohibition of its continuance.1534

In the first half of the same century, the manufacturers of the False Decretals had attributed to Alexander I. an epistle designed to protect the Church from pillage and oppression, in which that pontiff is made to threaten with infamy and excommunication those who extort confessions or other writings from ecclesiastics by force or fear, and to lay down the general rule that confessions must be voluntary and not compulsory.1535 On the authority of this, Ivo of Chartres, at the commencement of the twelfth century, declares that men in holy orders cannot be forced to confess;1536 and half a century later, Gratian lays down the more general as well as more explicit rule that no confession is to be extorted by the instrumentality of torture.1537 This position was consistently maintained until the revival of the Roman law familiarized the479 minds of men with the procedures of the imperial jurisprudence, when the policy of the Church altered, and it yielded to the temptation of obtaining so useful a means of reaching and proving the otherwise impalpable crime of heresy.

The latter half of the twelfth century saw the study of the civil law prosecuted with intense ardor, and, in the beginning of the thirteenth, Innocent III. struck a fatal blow at the barbaric systems of the ordeal and sacramental compurgation by forbidding the rites of the Church to the one and altering the form of oath customary to the other. The unreasoning faith which had reposed confidence in the boiling caldron, or the burning ploughshare, or the trained champion as the special vehicle of Divine judgment, was fading before the Aristotelian logic of the schools, and dialectical skill could not but note the absurdity of acquitting a culprit because he could beg or buy two, or five, or eleven men to swear to their belief in his oath or denial.

Yet with all these influences at work, the ancestral customs maintained their ground long and stubbornly. It is not until the latter half of the thirteenth century that the first faint traces of legalized torture are to be found in France, at whose University of Paris for more than a hundred years the study of the Pandects had become the absorbing topic, and where the constantly increasing power of the crown found its most valuable instruments in the civil lawyers, and its surest weapon against feudalism in the extension of the royal jurisdiction. In Germany, the progress was even slower. The decline of the central authority, after the death of Frederic Barbarossa, rendered any general change impossible, and made the absolutist principles of the imperial jurisprudence especially dis480tasteful to the crowd of feudal sovereigns, whose privileges were best supported by perpetuating organized anarchy. The early codes, therefore, the Sachsenspiegel, the Schwabenspiegel, the Kayser-Recht, and the Richstich Landrecht, which embodied the judicial proceedings of the Teutonic nations from the thirteenth to the fifteenth centuries, seem to know no other mode of deciding doubtful questions than sacramental purgation and the various forms of ordeal. During the latter portion of this period, it is true, torture begins to appear, but it is an innovation.1538

The first indications of the modern use of torture show distinctly that its origin is derived from the civil law. In the Latin Kingdoms of the East, the Teutonic races were brought into contact with the remains of the old civilization, impressive even in its decrepitude. It was natural that, in governing the motley collection of Greeks, Syrians, and Franks, for whom they had to legislate, they should adopt some of the institutions which they found in force amid their new possessions, and it is only surprising that torture did not form a more prominent feature in their code. The earliest extant text of the Assises de Jerusalem is not older than the thirteenth century,481 and the blundering and hesitating way in which it recognizes, in a single instance, the use of torture shows how novel was the idea of such procedure to the feudal barons, and how little they understood the principles governing its application. When a murderer was caught in the act by two witnesses, he could be promptly hanged on their testimony, if they were strangers to the victim. If, however, they were relatives, their testimony was held suspect, and the confession of the accused was requisite to his conviction. To obtain this, he was subjected to torture for three days; if he confessed, he was hanged; if obdurate, he was imprisoned for a year and a day, with the privilege of clearing himself during that period by the ordeal of the red-hot iron. If he declined this, and if during his confinement no additional evidence was procured, he was acquitted, and could not be again appealed for the murder.1539

This show’s the transition state of the question. The criminal is caught with the red hand and the evidence of guilt is complete, save that the witnesses may be interested; confession thus becomes requisite, yet the failure to extort it by prolonged torment does not clear the accused; the ordeal is resorted to in order to supplement the torture, and solve the doubts which the latter could not remove; and finally, the criminal is absolved, though he dare not trust the judgment of God, and though the uncertainties in which torture had left the case are not removed.

Italy was the centre from which radiated the influences of the Roman law throughout Western Europe, and, as might be expected, it is to Italy that we must look for the earliest incorporation of torture in the procedures of modern criminal jurisprudence. The Veronese laws in force in 1228 already show a mixture of proceedings suggestive, like the Assises de Jerusalem, of the impending change. In doubtful cases, the podestà was empowered to ascertain the truth of testimony by482 either inquest, torture, or the duel.1540 This shows that the employment of torture was by this time recognized to some extent, though as the code is a very full one and this is the only allusion to it, it evidently had not yet grown into one of the regular legal processes. So in the legislation of Frederic II. for his Neapolitan provinces, promulgated in 1231, the mode in which it is prescribed shows that it was as yet but sparingly employed. As Frederic was one of the earliest secular legislators who discountenanced and restricted the various forms of the ordeal, it was natural that, with his education and temperament, he should seek to replace them with the system of the Roman codes which he so much admired.

When a secret murder or other heinous crime was committed, and the most stringent investigation could not convict the perpetrators, if the weight of suspicion fell on persons of humble station and little consequence, they could be tortured for confession. If no torment could wring from them an acknowledgment of guilt, or if, as often happened (“prout accidere novimus in plerisque”), their resolution gave way under insufferable torment and they subsequently recanted, then the punishment, in the shape of a fine, was inflicted on the district where the crime had occurred.1541 From this it is evident that torture was not exactly a novelty, but that as yet it was only ventured upon with the lowest and most unprotected class of society, and that confession during its infliction was not regarded as sufficient for conviction, unless subsequently ratified.

During the remainder of the century, the statutes of many of the Italian cities show the gradual introduction of torture to replace the barbarian processes which were not indigenous,1542 and which the traditional hate of the Italian States for483 the Tedeschi was not likely to render popular. That by the middle of the century, indeed, the practical applications of torture had been profoundly studied and were thoroughly understood in all their most inhuman ramifications is sufficiently evident from the accounts which we possess of the fearful cruelties habitually practised by petty despots such as Eccelino da Romano.1543

The manner in which the use of torture thus in time was superimposed upon the existing customs of Europe is clearly shown in the law of Lubeck. The mercantile law of the Middle Ages disregarded, as we have seen, all the irregular forms of evidence, such as the ordeal, the judicial duel, &c., and it naturally was not favorable to torture. As the chief of the Hanse-towns Lubeck, therefore, in its legislation preserved the principles of the mercantile law, but in time these came to be expounded by a race of lawyers imbued with the ideas of the imperial jurisprudence, and little was left of the primitive simplicity of the original code. Thus the latter, when treating of adultery, simply provides that the accused must clear himself by oath, or be held guilty of the charge; but a commentary on it, written in 1664, assumes that as the crime is a peculiarly secret one recourse must be at once had to torture where there is colorable ground for suspicion.1544

About this time we also find, in the increasing rigor and gradual systematizing of the Inquisition, an evidence of the growing disposition to resort to torture, and a powerful element in extending and facilitating its introduction. The Church had been actively engaged in discountenancing and484 extirpating the ordeal, and it now threw the immense weight of its authority in favor of the new process of extorting confessions. When Frederic II., from 1220 to 1239, published his three constitutions directed against heresy, cruel and unsparing as they were, they contained no indication that torture was even contemplated as a mode of investigation. In conformity with the provisions of the Lateran Council of 1215, parties suspected on insufficient evidence were directed to prove their innocence by some fitting mode of purgation, and the same instructions were given by Gregory IX. in 1235.1545 In 1252, however, when Innocent IV. issued his elaborate directions for the guidance of the Inquisition in Tuscany and Lombardy, he ordered the civil magistrates to extort from all heretics by torture not merely a confession of their own guilt, but an accusation of all who might be their accomplices; and this derives additional significance from his reference to similar proceedings as customary in trials of thieves and robbers.1546 It shows the progress made during the quarter of the century and the high appreciation entertained by the Church for the convenience of the new system.

At first the canons of the Church, which prohibited ecclesiastics from being concerned in such matters, or even from being present, under pain of “irregularity,” rendered it necessary for inquisitors to call in the secular executioners; but this interfered with promptness and secrecy, and the difficulty was removed with characteristic indirection. A series of papal bulls from 1256 to 1266 authorized inquisitors and485 their assistants to grant mutual absolution and dispensation for irregularities,1547 and thus they were able to take the business of inflicting torture into their own hands—an opportunity of which they availed themselves fully.

As yet, however, this did not extend beyond Italy. There is extant a tract, written not long after this time, containing very minute instructions as to the established mode of dealing with the Waldensian sectaries known as the “Poor Men of Lyons.” It gives directions to break down their strength and overcome their fortitude by solitary confinement, starvation, and terror, but it abstains from recommending the infliction of absolute and direct torture, while its details are so full that the omission is fair negative evidence that such measures were not then customary.1548

The whole system of the Inquisition, however, was such as to render the resort to torture inevitable. Its proceedings were secret; the prisoner was carefully kept in ignorance of the exact charges against him, and of the evidence upon which they were based. He was presumed to be guilty, and his judges bent all their energies to force him to confess. To accomplish this, no means were too base or too cruel. According to the tract just quoted, pretended sympathizers were to be let into his dungeon, whose affected friendship might entrap him into an unwary admission; officials armed with fictitious evidence were directed to frighten him with assertions of the testimony obtained against him from supposititious witnesses; and no resources of fraud or guile were to be spared in overcoming the caution and resolution of the poor wretch whose mind, as we have seen, had been carefully weakened by solitude, suffering, hunger, and terror. From this to the rack and estrapade the step was easily taken, and was not486 long delayed. In 1301, we find even Philippe le Bel protesting against the cruelty of Fulk, the Dominican Inquisitor, and interfering to protect his subjects from the refinements of torture to which, on simple suspicion of heresy, unfortunate victims were habitually exposed.1549 Yet when, a few years later, the same monarch resolved upon the destruction of the Templars, he made the Inquisition the facile instrument to which he resorted, as a matter of course, to extort from De Molay and his knights, with endless repetition of torments, the confessions from which he hoped to recruit his exhausted treasury with their broad lands and accumulated riches.1550

The history of the Inquisition, however, is too large a subject to be treated here in detail, and it can only be alluded to for the purpose of indicating its influence upon secular law. That influence was immense. The legists who were endeavoring to eradicate the feudal customs could not expect the community to share their admiration of the Roman law, and naturally grasped with eagerness the advantage offered them in adducing the example of ecclesiastical institutions. In founding their new system they could thus hardly avoid copying that which presented itself under all the authority of an infallible Church, and which had been found to work so successfully in unveiling the most secret of hidden crimes, those of faith and belief.1551 When, therefore, men were taught487 that in these cases the ordinary forms and safeguards of the law were not to stand in the way of the public good, a principle was enunciated capable of illimitable development.

About the time when Innocent IV. was prescribing torture in Italy, we find the first evidence of its authoritative use in France as an ordinary legal procedure. In December, 1254, an assembly of the nobles of the realm at Paris adopted an ordonnance regulating many points in the administration of justice. Among these occurs an order that persons of good reputation, even though poor, shall not be put to the torture on the evidence of one witness, lest, on the one hand, they may be forced to convict themselves falsely, or, on the other, to buy themselves off from the infliction.1552

This would seem to indicate that the system of judicial torture was so completely established that its evils and abuses had begun to render themselves apparent and to require restrictive legislation. Yet the contemporaneous remains of jurisprudence show no trace of the custom, and some of them are of a nature to render their silence a negative proof of no little weight. To this period, for instance, belongs the earliest extant coutumier of Normandy, published by Ludewig, and it contains no allusion to torture. The same may be said of the For de Béarn,488 granted in 1288, and recently printed by MM. Mazure and Hatoulet, which is very full in its details of judicial procedure. The collection of the laws of St. Louis, known as the Établissements, is likewise free from any instructions or directions as to its application, though it could scarcely have been omitted had it formed part of the admitted jurisprudence of the age. It may be argued, indeed, that these codes and laws assume the existence of torture, and therefore make no reference to it, but such an argument would not hold good with respect to the books of practice which shrewd and experienced lawyers commenced at that time to draw up for the guidance of courts in the unsettled period of conflict between the ancient feudal customs and the invading civil law. For instance, no text-book can well be more minute than the Livres de Jostice et de Plet, written about the year 1260, by a lawyer of the school of Orleans, then celebrated as the headquarters of the study of the imperial jurisprudence. He manifests upon almost every page his familiar acquaintance with the civil and canon law, and he could not possibly have avoided some reference to torture if it had been even an occasional resource in the tribunals in which he pleaded, and yet he does not in any way allude to it.

The same conclusion is derivable from the Coutumes du Beauvoisis, written about 1270 by Philippe de Beaumanoir. In his position as royal bailli, Beaumanoir had obtained the fullest possible familiarity with all the practical secular jurisprudence of his day, and his tendencies were naturally in favor of the new system with which St. Louis was endeavoring to break down the feudal customs. Yet, while he details at much length every step in all the cases, civil and criminal, that could be brought into Court, he makes no allusion to torture as a means of obtaining evidence. In one passage, it is true, he seems to indicate that a prisoner could be forced, while in prison, to criminate himself, but the terms employed prove clearly that this was not intended to include the489 administration of torment.1553 In another place, moreover, when treating of robberies, he directs that all suspected parties should be long and closely confined, but that, if they cannot be convicted by external evidence, they must at last be discharged.1554 All this is clearly incompatible with the theory of torture.