Law and Practice of Torture. more timid, and the younger, but not always women before men, " because women are less afraid of torture than men, and will longer persist in a negative." Known criminals, or men with criminal family names, will have a preference in tor ture; and, wisest hint of all, " some hold that it is proper to begin with the man who has a bad physiognomy, provided he labors under other presumptions." It is a curious com mentary upon Guazzini's idea of the fatal gift of ugliness, that the composite photo graph of thirty-eight criminals at Elmira, given in Mr. Havelock Ellis's book, " The Criminal," represents a very pleasing face indeed." Within the limits of this article we can scarcely follow Guazzini further, fascinating though this curious chapter of law undoubt edly is. Strange as it may appear, the ob ject of judicial torture was undoubtedly kindly, but it was a strange and savage kind ness. If the accused remained firm, serious though the presumptions against him were, he escaped. It should be understood that we have written solely of torture under legal conditions. The torture applied by the Crown, or by lords in their castles, was a very different matter; so also was the tor ture of the Spanish Inquisition. But torture in law was a delicate and well-guarded sys
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tem. " Trial by ordeal" as Mr. Welling, to whom we owe this interesting study of legal antiquities, says, " wrought a purely formal decision of the questions put in issue. Trial by torture wrought with the processes of a purely formal decision to the end only of the prisoner's acquittal. If he endured the tor ture, he was to be adjudged innocent. For purposes of conviction the formal confession extorted under torture must be eliminated by a so-called free confession made outside of torture. This professed elimination of terrorism and constraint was required in theory to be complete before judgment of guilt could be pronounced; and, hypocritical as the pretence of observing the rule may have often been in practice, it was still a homage which the vice of even this irrational institute felt itself called to pay to the vir tues of truth and reason. It was at least an advance on the regime of pure negation and of pure unreason. Mr. George Neilson has dealt with admi rable learning and literary ability with the trial by combat; here is another subject which none is more fit than he to write upon. Will he not give us a second instalment of the history of legal institutions in the form of a treatise on the Law and Practice of Torture? — Scottish Law Review.
