Law and Practice of Torture.
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THE LAW AND PRACTICE OF TORTURE. way, and told the world that the bees of Hybla had shed honey on his lips, and that Minerva had whispered in his ear. Alas for this noble judge! He seems likely to go down to posterity, chiefly famous for the admirable condensation of the law of torture, which is buried in the "Tractatus, and which a learned American has disinterred and pre sented to the world in the pages of the "Journal of the Anthropological Society of Washington." Guazzini was not, of course, the only writer on torture, but he has the merit of having been one of its most lucid expositors. Torture, Guazzini defines as " distress of body devised for extracting truth." It is a legal remedy, but not one to be hastily or carelessly used; it is rather a subsidiary remedy only to be resorted to when truth — i. e., the guilt of the party accused — cannot be discovered otherwise. This is exactly what Dr. Johnson said over his coal-fire in the Colchester inn. Torture, as understood in mediaeval law, was a process for ensuring, by confession from the accused, that a legal presumption of guilt, already established to the satisfaction of the judge, was in fact ab solutely true. Nor could it be resorted to in every case; it was not available in actions where money damages were claimed, or indeed in any case arising from contract, express or implied. It was to be adminis tered in cases which involved a penalty like banishment or death. The torture could not precede the trial; all must be done in order. If the prosecutor shall say, " I have no pre sumption of fact and no proof against the accused; but I wish to stand with him in torture, and in this way prove the crime im puted to him; such a prosecutor shall not be heard, and the accused shall not be tor "My voice shall sound as you do prompt mine ear; And I will stoop and humble my intents tured on this plea. ... It is .otherwise To your well-practised wise directions." where presumptions of law are concerned, The authors of the day plied Guazzini and where any indication shall have been with classic compliment, as was their pretty proved, whether by confession made out of
WHEN Dr. Johnson set out, in 1763, to convoy Boswell to Harwich, whence the Scotsman was to sail to Holland, they lay one night at Colchester, and there had much excellent converse with a Dutchman. "He spake English tolerably well," says Boswell, " and, thinking to recommend him self to us by expatiating on the superiority of the criminal jurisprudence of this country over that of Holland, he inveighed against the barbarity of putting an accused person to the torture in order to force a confession." But Johnson was ready for this as for the Inquisition (which he had been defending, to the astonishment of his fellow-travellers by coach). "Why, sir, you do not, I find, understand the law of your own country. To torture, in Holland, is considered as a favor to an accused person; for no man is put to the torture there unless there is as much evidence against him as would amount to conviction in England. An accused per son among you therefore has one chance more to escape punishment than those who are tried among us." No doubt Johnson, as usual, routed his enemy. It were vain to f,4iess what Johnson had not read; but one wonders whether he was one of the few English readers of the treatise of Sebastian Guazzini, the great authority upon Torture and its Laws. His treatise, " Tractatus ad Defensam Inquisitorum, Carceratorum, Reorum et Condemnatorum super Quocunque Crimine" (or, in other words, a handbook to the practice of criminal law), was written in 1612, and rapidly became an authority over Europe. Guazzini was a very celebrated lawyer in his day, and for more than a cen tury most continental judges might have said of him, —
