The question. In the above article we have seen some instructive details for criminal judges, but since it is not forbidden to examine the most delicate legal subjects, we will take advantage of this privilege and follow the example of several scholars and citizens all through history who have set out the disadvantages that they thought they saw in the practice of the question , or to be more precise, of torture. The obedience of a subject means we must obey our lawmakers, but not that we should consider them infallible, or that they might not have followed the worse of two practices. That is why we may depict injustices respectfully, in order to enlighten the sovereign and bring him through his religion and justice to reform them.

I could point out that the Athenians only used the question in cases of lese-majesty, and that they had no knowledge of the preparatory question ; that for the Romans, birth, dignity and the military profession exempted individuals from torture and that only slaves over whom their owners had the power of life and death were exposed to it; similarly, at the time of Charlemagne, the question was only given to slaves. But these remarks are weak, since the law of nature cries out against the practice without allowing any exception for anyone whatsoever.

Independently of the voice of humanity, the question does not meet the aim attributed to it. On the contrary, it is a sure way to condemn an innocent person with a weak and delicate constitution and to save a guilty individual who was born robust. An individual who can bear torture and one who lacks the strength to stand it, both lie. The torments that people suffer under torture are certain and the crime of people undergoing it is not. The unfortunate man being tortured is less interested in saying what he knows than in freeing himself from what he feels. So, as Montaigne said, torture is a dangerous invention. It is, he goes on, “a test of patience more than truth, since why should pain make an unfortunate person say what is true rather than make him say what is not true? And if, on the other hand, a person accused of what he has not done is patient enough to bear such torments, then why shouldn’t one who has committed the crime do the same, since such a fine reward as life is assured him? In short, it is a means full of uncertainty and danger. What won’t we say, what won’t we do to escape such grievous pain? From this it follows that whoever a judge has tortured so as not to let him die innocent, only lets him die innocent and tortured.”

A highly pitiful state is thus an innocent man’s, from whom the question tears the confession of a crime. But the state of a judge, believing himself authorised by the law, who causes this innocent man to undergo torture, must be, in my opinion, a hideous one. Has he any means to make amends for such sufferings? There have always been innocent men, whom torture has made confess to crimes they did not commit. The intensity of the pain or the infirmity of the person make the innocent individual confess to what he did not do, and the obstinacy of the guilty who happen to be strong and more assured in their crimes leads them to deny everything.

Charondas, book IX rep. 1 mentions a highly deplorable example. A husband accused of murdering his wife denied the fact; all presumptions were against him and the very evening he took refuge, he had violently maltreated the woman, and had then run away from their home. On these half-proofs, the man was tortured; he confessed to the murder, and was condemned to death. An appeal against the judgement was made. In the time needed to write up the records of the trial, entirely against the man, his wife, who had hidden in the house of a priest, her corrupter, reappeared. It is easy to understand that the verdict reached then discharged the so-called guilty man from the accusation. But could the judge, or if you prefer, the law, compensate for the torture the man had suffered and the evils he had undergone?

If I so wished, it would be easy for me to cite many other examples of people to whom the question has been applied, who have preferred a prompt death to lengthy torture and, to free themselves, have confessed to crimes they did not commit. See St Jerome, Epistle 34 and Papon, book XXIV. tit. 8. numb. 1 and Louis Vivès, in his commentary on St Augustine, The City of God, book XIX. ch. vi , where he declares himself strongly opposed to torture.

I would have no more difficulty in putting forward other reasons against torture that have not yet been proposed. It is at least certain that if one cannot take a man’s life on doubtful proof, then the proofs torn from him by torture will be just as doubtful. So an extorted confession cannot serve as a motive for a death sentence. If we maintain we must not sentence anyone to death after the voluntary confession of a single person, then neither can we order an execution after a confession forced out of someone by torture.

Another reflection occurs to me. As we claim that religion, justice and morals are opposed to trial by combat, then we should also see that torture is contrary to them, otherwise we would be inconsistent in our principles. For it is just as likely for an accused criminal to resist the violence of the question as it was that the same man should overcome and beat his accuser. Yet despite this drawback, common to both duels and torture, we have kept up the use of torture in the same countries where we have strictly suppressed duels, at least by law.

I would add that the question , far from being a useful way to uncover the true accomplices of a crime, could sometimes be positively harmful in this respect. When William Laud, Bishop of London, threatened Felton, who had killed the Duke of Buckingham, with torture, if he did not give the names of his accomplices, Felton replied: “My Lord, I do not know what the torments of torture will make me say, but it is possible that I will name you as the first of my accomplices or some other member of the King’s Council. So you would be well-advised to spare me such useless torments.”

Finally, torturing criminals is by no means a necessity. Today we can see a highly civilised nation, as enlightened as it is respectful towards humanity, which has rejected this punishment with no inconvenience, even in cases of high treason. So it is not inherently necessary. But so many talented men and brilliant geniuses have written on this subject that there is no need for me to discuss it further. So, for instance, I would ask the reader to consult, in particular, the work of John Grevius. It is entitled, Tribunal reformatum, in quo sanioris and tutioris justitia[e] via judici christiano in processu criminali demonstratur, rejectâ and fugatâ torturâ, cujus iniquitatem, multiplicem fallaciam, atque illicitum inter christianos usum, aperuit [The Reformed Tribunal, in which is revealed a pathway of healthier and safer justice for the Christian judge in a criminal proceeding, rejecting and fleeing torture, whose wickedness, many-sided erroneousness, and the unlawfulness of its employment among Christians John Grevius has shown....] [1] , John Grevius, Clivensis Homb. , 1624, in folio. This work brought about salutary effects in the Netherlands. The law that prescribed the question was allowed to fall into abeyance. No use of it has been made in Holland for over a hundred years.

I will crown my article with the words of Quintilian, Inst. Orat. book V. c. iv. Sicut in tormentis quoque, qui est locus frequentissimus, cùm pars altera quaestionem, vera fatendi necessitatem vocet, altera saepè etiam causam falsa dicendi, quòd aliis patientia, facilè mendacium faciat, aliis, infirmitas necessarium (“The case is similar with regard to evidence exacted by torture, which is a frequent subject of discussion, as one side will call torture an infallible means for discovering truth, the other will represent it as a cause of the utterance of falsehood, because to some persons, the ability to endure makes lying easy, to others weakness renders it necessary.” Translated by John Selby Watson, 1856). We will add the passage from the jurist Ulpian, in book I. §. quaest. de quaest: “Statutum est non semper fidem tormentis, nec tamen nunquam adhibendam fore. Etenim res est fragilis, quaestio and periculosa, veritatem fallat; nam plerique patientiâ, sive duritiâ tormentorum, ita tormenta contemnunt, ut exprimi eis veritas, nullo modo possit: alii tantâ sunt impatientiâ, ut quoevis mentiri, quam pati tormenta velint. Ita fit, ut etiam vario modo fateantur, ut non tantùm se, verùm etiam alios criminentur” ("Torture [ quaestio ] is not to be regarded as wholly deserving or wholly undeserving of confidence; indeed, it is untrustworthy, perilous and deceptive. For most men, by patience or the severity of the torture, come so to despise the torture that the truth cannot be elicited from them; others are so impatient that they will lie in any direction rather than suffer the torture; so it happens that they depose to contradictions and accuse not only themselves but others." Translation from the Encyclopedia Britannica , 1911).

Notes

1. [English translation of title by Ruth Scodel.]