a cruelty consecrated among most nations by custom is the torture of the accused during his trial, on the pretext of compelling him to confess his crime, of clearing up contradictions in his statements, of discovering his accomplices, of purging him in some metaphysical and incomprehensible way from infamy, or finally of finding out other crimes of which he may possibly be guilty, but of which he is not accused.
a man cannot be called guilty before sentence has been passed on him by a judge, nor can society deprive him of its protection till it has been decided that he has broken the condition on which it was granted. what, then, is that right but one of mere might by which a judge is empowered to inflict a punishment on a citizen whilst his guilt or innocence are still undetermined? the following dilemma is no new one: either the crime is certain or uncertain; if certain, no other punishment is suitable for it than that affixed to it by law; and torture is useless, for the same reason that the criminal’s confession is useless. if it is uncertain, it is wrong to torture an[149] innocent person, such as the law adjudges him to be, whose crimes are not yet proved.
what is the political object of punishments? the intimidation of other men. but what shall we say of the secret and private tortures which the tyranny of custom exercises alike upon the guilty and the innocent? it is important, indeed, that no open crime shall pass unpunished; but the public exposure of a criminal whose crime was hidden in darkness is utterly useless. an evil that has been done and cannot be undone can only be punished by civil society in so far as it may affect others with the hope of impunity. if it be true that there are a greater number of men who either from fear or virtue respect the laws than of those who transgress them, the risk of torturing an innocent man should be estimated according to the probability that any man will have been more likely, other things being equal, to have respected than to have despised the laws.
but i say in addition: it is to seek to confound all the relations of things to require a man to be at the same time accuser and accused, to make pain the crucible of truth, as if the test of it lay in the muscles and sinews of an unfortunate wretch. the law which ordains the use of torture is a law which says to men: ‘resist pain; and if nature has created in you an inextinguishable self-love, if she has given you an inalienable right of self-defence, i create in you a totally[150] contrary affection, namely, an heroic self-hatred, and i command you to accuse yourselves, and to speak the truth between the laceration of your muscles and the dislocation of your bones.’
this infamous crucible of truth is a still-existing monument of that primitive and savage legal system, which called trials by fire and boiling water, or the accidental decisions of combat, judgments of god, as if the rings of the eternal chain in the control of the first cause must at every moment be disarranged and put out for the petty institutions of mankind. the only difference between torture and the trial by fire and water is, that the result of the former seems to depend on the will of the accused, and that of the other two on a fact which is purely physical and extrinsic to the sufferer; but the difference is only apparent, not real. the avowal of truth under tortures and agonies is as little free as was in those times the prevention without fraud of the usual effects of fire and boiling water. every act of our will is ever proportioned to the force of the sensible impression which causes it, and the sensibility of every man is limited. hence the impression produced by pain may be so intense as to occupy a man’s entire sensibility and leave him no other liberty than the choice of the shortest way of escape, for the present moment, from his penalty. under such circumstances the answer of the accused is as[151] inevitable as the impressions produced by fire and water; and the innocent man who is sensitive will declare himself guilty, when by so doing he hopes to bring his agonies to an end. all the difference between guilt and innocence is lost by virtue of the very means which they profess to employ for its discovery.
torture is a certain method for the acquittal of robust villains and for the condemnation of innocent but feeble men. see the fatal drawbacks of this pretended test of truth—a test, indeed, that is worthy of cannibals; a test which the romans, barbarous as they too were in many respects, reserved for slaves alone, the victims of their fierce and too highly lauded virtue. of two men, equally innocent or equally guilty, the robust and courageous will be acquitted, the weak and the timid will be condemned, by virtue of the following exact train of reasoning on the part of the judge: ‘i as judge had to find you guilty of such and such a crime; you, a b, have by your physical strength been able to resist pain, and therefore i acquit you; you, c d, in your weakness have yielded to it; therefore i condemn you. i feel that a confession extorted amid torments can have no force, but i will torture you afresh unless you corroborate what you have now confessed.’
the result, then, of torture is a matter of temperament, of calculation, which varies with each man according[152] to his strength and sensibility; so that by this method a mathematician might solve better than a judge this problem: ‘given the muscular force and the nervous sensibility of an innocent man, to find the degree of pain which will cause him to plead guilty to a given crime.’
the object of examining an accused man is the ascertainment of truth. but if this truth is difficult to discover from a man’s air, demeanour, or countenance, even when he is quiet, much more difficult will it be to discover from a man upon whose face all the signs, whereby most men, sometimes in spite of themselves, express the truth, are distorted by pain. every violent action confuses and causes to disappear those trifling differences between objects, by which one may sometimes distinguish the true from the false.
a strange consequence that flows naturally from the use of torture is, that an innocent man is thereby placed in a worse condition than a guilty one, because if both are tortured the former has every alternative against him. for either he confesses the crime and is condemned, or he is declared innocent, having suffered an undeserved punishment. but the guilty man has one chance in his favour, since, if he resist the torture firmly, and is acquitted in consequence, he has exchanged a greater penalty for a smaller one. therefore the innocent man can only lose, the guilty may gain, by torture.
[153]
this truth is, in fact, felt, though in a confused way, by the very persons who place themselves farthest from it. for a confession made under torture is of no avail unless it be confirmed by an oath made after it; and yet, should the criminal not confirm his confession, he is tortured afresh. some doctors of law and some nations only allow this infamous begging of the question to be employed three times; whilst other nations and other doctors leave it to the discretion of the judge.
it were superfluous to enlighten the matter more thoroughly by mentioning the numberless instances of innocent persons who have confessed themselves guilty from the agonies of torture; no nation, no age, but can mention its own; but men neither change their natures nor draw conclusions. there is no man who has ever raised his ideas beyond the common needs of life but runs occasionally towards nature, who with secret and confused voice calls him to herself; but custom, that tyrant of human minds, draws him back and frightens him.
the second pretext for torture is its application to supposed criminals who contradict themselves under examination, as if the fear of the punishment, the uncertainty of the sentence, the legal pageantry, the majesty of the judge, the state of ignorance that is common alike to innocent and guilty, were not enough to plunge into self-contradiction both the innocent man[154] who is afraid, and the guilty man who seeks to shield himself; as if contradictions, common enough when men are at their ease, were not likely to be multiplied, when the mind is perturbed and wholly absorbed in the thought of seeking safety from imminent peril.
torture, again, is employed to discover if a criminal is guilty of other crimes besides those with which he is charged. it is as if this argument were employed: ‘because you are guilty of one crime you may be guilty of a hundred others. this doubt weighs upon me: i wish to ascertain about it by my test of truth: the laws torture you because you are guilty, because you may be guilty, because i mean you to be guilty.’
torture, again, is inflicted upon an accused man in order to discover his accomplices in crime. but if it is proved that it is not a fitting method for the discovery of truth, how will it serve to disclose accomplices, which is part of the truth to be discovered? as if a man who accuses himself would not more readily accuse others. and is it just to torment men for the crimes of others? will not the accomplices be disclosed from the examination of the witnesses and of the accused, from the proofs and whole circumstances of the crime; in sum, from all those very means which should serve to convict the accused himself of guilt? accomplices generally fly immediately after the capture of a companion; the uncertainty[155] of their lot of itself condemns them to exile, and frees the country from the danger of fresh offences from them; whilst the punishment of the criminal who is caught attains its precise object, namely, the averting of other men by terror from a similar crime.
another ridiculous reason for torture is the purgation from infamy; that is to say, a man judged infamous by the laws must confirm his testimony by the dislocation of his bones. this abuse ought not to be tolerated in the eighteenth century. it is believed that pain, which is a physical sensation, purges from infamy, which is merely a moral condition. is pain, then, a crucible, and infamy a mixed impure substance? but infamy is a sentiment, subject neither to laws nor to reason, but to common opinion. torture itself causes real infamy to the victim of it. so the result is, that by this method infamy will be taken away by the very fact of its infliction!
it is not difficult to go back to the origin of this ridiculous law, because the absurdities themselves that a whole nation adopts have always some connection with other common ideas which the same nation respects. the custom seems to have been derived from religious and spiritual ideas, which have so great an influence on the thoughts of men, on nations, and on generations. an infallible dogma assures us, that the stains contracted by human weakness[156] and undeserving of the eternal anger of the supreme being must be purged by an incomprehensible fire. now, infamy is a civil stain; and as pain and fire take away spiritual and incorporeal stains, why should not the agonies of torture take away the civil stain of infamy? i believe that the confession of a criminal, which some courts insist on as an essential requisite for condemnation, has a similar origin;—because in the mysterious tribunal of repentance the confession of sins is an essential part of the sacrament. this is the way men abuse the surest lights of revelation; and as these are the only ones which exist in times of ignorance, it is to them on all occasions that docile humanity turns, making of them the most absurd and far-fetched applications.
these truths were recognised by the roman legislators, for they inflicted torture only upon slaves, who in law had no personality. they have been adopted by england, a nation, the glory of whose literature, the superiority of whose commerce and wealth, and consequently of whose power, and the examples of whose virtue and courage leave us no doubt as to the goodness of her laws. torture has also been abolished in sweden; it has been abolished by one of the wisest monarchs of europe, who, taking philosophy with him to the throne, has made himself the friend and legislator of his subjects, rendering them equal and free in their dependence on the laws, the sole kind of equality[157] and liberty that reasonable men can ask for in the present condition of things. nor has torture been deemed necessary in the laws which regulate armies, composed though they are for the most part of the dregs of different countries, and for that reason more than any other class of men the more likely to require it. a strange thing, for whoever forgets the power of the tyranny exercised by custom, that pacific laws should be obliged to learn from minds hardened to massacre and bloodshed the most humane method of conducting trials.
