QUESTION

The application of torture to prisoners under criminal accusation, according to the law of France before the Revolution. The question was of two kinds: one, whore strong evidence, but insufficient of itself to justify a condemnation to death, existed against a prisoner on a capital charge; he might then be subjected to torture to produce confe ion. This was termed the question pre para to ire. It was abolished by an ordinance of Louis XVI. in 1780. The other, termed question prealable'or definitive, was applied to the prisoner when convicted of a capital ofTence, in order to make him discover supposed accomplices. It was abolished by the National A embly. The preparatory question was also of two sorts: — one, avec reserve do preuves, in which case, if the criminal did not confe under the torture, the other evidence was considered as still subsisting against him, so as to justify his condemnation to some lighter punishment; the other, sans reserve de preuves, in which case, if he persisted in his denial, he was acquitted altogether. It was at the option of the judges, according to their: opinion of the amount of evidence, to decide to which of I these questions the accused should be subjected. The [ modes of torture applied varied in France, being fixed by the several parliaments within their separate jurisdictions. Those in common use at Paris were, — the question by water, which consisted ih stretching the limbs of the sufferer on a board by means of screws, and forcing him to swallow large quantities of water; and the boots, in which his legs were inclosed in wooden cases, the whole tightly compre ed with ropes, and wedges driven with a mallet between the two cases. The question varied in degree, being ordinary or extraordinary, attho discretion of the judges. Children and adolescents, old men, and women with child, were excepted from torture j by the French law. And, by an ordonnance of 1070, the second application of the question was forbidden in all cases. Torture has been applied, as a mode of extorting confe ion, in all countries into which the principles of the civil law have been imported; although the barbarity and uncertainty of the practice were remarked upon even in the best times of Roman jurisprudence. The observations of Cicero on the subject are well known; and Ulpian, the greatest authority on the civil law, speaks even more directly. " Res est fragilis et periculosa (the torture), et quaj veritatem fall it: nam plerique patient i a sive duritia tor men to rem ita et tormenta contemnunt, ut exprimi eis Veritas nullo modo po it; ali i tanta sunt impatient i a ut quidvis mentiri quam pat i mallent." It is, however, an important remark, that as, by the strict principles of jurisprudence, the torture was only applied m cases where there already existed a ma of evidence against the prisoner, sufficient, in ordinary judgment, to warrant his condemnation, it did in fact afford him an additional chance of escape; and that, however great its absurdity on every supposition, its barbarity rather arose from its liability to abuse than its legitimate infliction. The practice of judicial torture was not a part of the common law of England, except in one particular case. The rack is said to have been first introduced into this country by the dukes of Exeter and Suffolk, in the minority of Henry VL; at all events, it was then first made a common engine of discovery in state matters. It was used, on warrant from the privy council, on prisoners in the Tower of London for a long period afterwards, and more especially in the reign of Elizabeth, to enforce confe ions or accusai^ion of accomplices from recusant priests, and others suspected of being engnged in treasonable plots against her. It was probably employed in the examination of Guy Fawkes, after tiie detection of the Gunpowder Plot; as has been conjectured, among other reasons, from the feeble and trembling hand in w hich the signature of that criminal to his last confe ion is written, v.hen compared with that in which he subscribed his former declarations. On the trial of Felton for the a a ination of Villiers, duke of Bucking ham, the judges were consulted by the privy council as to the lawfulne of the infliction of torture; and on their a erting it to be illegal, it was not applied. there is, however, reason to suppose that it was used at least in one subsequent ease in the reign of Charles I. (See Jardine on Torture, 1837.) The exception to which allusion has been made, by which torture was in one case recognized by the common law, is the celebrated Peine Forte et Dure. It has. indeed, been said, and was a erted by the judges in 8 Hen. 4., that this infliction was only introduced in consequence of the first statute of Westminster; but it is at least highly probable that before that period, persons refusing to plead were subjected to imprisonment and ill-treatment to induce them to do so. After that statute, the judgment appears only to have been to strait and severe confinement; nor was it until the reign of Hen. 4. that its horrible character seems to have been fully determined by law. After that time, the prisoner was remanded to the place from whence he came, laid on the ground in a dark room, and "as many weights as he can 3T [s. 1022]