APPENDIX IX
Torture
IN former times such prisoners as contumaciously refused to plead to their indictments underwent torture until they complied with the law as it then regarded their case. This punishment is, however, no longer deemed compatible with freedom; and it was therefore abrogated in the year 1772. Yet, as the inhuman practice still prevails in some of the English settlements abroad, and as many nations continue to torture criminals, we shall offer some observations thereon.
In order to extort confession, torture is not peculiar to Roman Catholic countries, but is even a custom in China. The instrument of barbarity called the rack is composed of a thick strong plank, having a contrivance at one end to secure the hands, and at the other a sort of double wooden vice. The vice is formed of three stout uprights, two of which are moveable, but steadied by a block that is fastened on each side. The ankles of the culprit being placed in the machine, a cord is passed round the uprights, and held fast by two men. The chief tormentor then gradually introduces a wedge into the intervals, alternately changing sides. The method of forcing an expansion at the upper part causes the lower ends to draw towards the central upright, which is fixed unto the plank, and thereby compresses the ankles of the wretched sufferer; who, provided he be fortified by innocence or resolution, endures the advances of the wedge, until his bones are reduced to a jelly.
Stedman, in his account of Surinam, relates the following horrid scene, to which he was an eye-witness:
'There was a negro whose name was Neptune, no slave, but his own master, and a carpenter by trade: he was young and handsome, but, having killed the overseer of the estate of Altona, in the Para Creek, in consequence of some dispute, he justly forfeited his life. The particulars, however, are worth relating:
'This man having stolen a sheep to entertain a favourite young woman, the overseer, who burned with jealousy, had determined to see him hanged; to prevent which, the negro shot him dead among the sugar-canes. For these offences, of course, he was sentenced to be broken alive upon the rack, without the benefit of the coup de grace, or mercy- stroke. Informed of the dreadful sentence, he composedly laid himself down upon his back on a strong cross, on which, with his arms and legs extended, he was fastened by ropes.
The executioner, also a black man, having now with a hatchet chopped off his left hand, next took up a heavy iron bar, with which, by repeated blows, he broke his bones to shivers, till the marrow, blood, and splinters, flew about the field; but the prisoner never uttered a groan nor a sigh! The ropes being next unlashed, I imagined him dead, and felt happy; till the magistrates stirring to depart, he writhed himself from the cross, when he fell on the grass, and damned them all as a set of barbarous rascals. At the same time, removing his right hand by the help of his teeth, he rested his head on part of the timber, and asked the by-standers for a pipe of tobacco, which was infamously answered by kicking and spitting on him, till I, with some American seamen, thought proper to prevent it. He then begged his head might be chopped off; but to no purpose. At last, seeing no end to his misery, he declared, "that though he had deserved death, he had not expected to die so many deaths; however, (said he,) you Christians have missed your aim at last, and I now care not were I to remain thus one month longer."
After which he sung two extempore songs with a clear voice; the subjects of which were to bid adieu to his living friends, and to acquaint his deceased relations that in a very little time be should be with them, to enjoy their company for ever in a better place.
This done, he calmly entered into conversation with some gentlemen concerning his trial, relating every particular with uncommon tranquillity. "But (said he abruptly), by the sun it must be eight o'clock, and by any longer discourse I should be sorry to be the cause of your losing your breakfast." Then, casting his eyes on a Jew, whose name was De Vries, "Apropos, Sir (said he), won't you please to pay me the ten shillings you owe me?" "For what to do?" "To buy meat and drink, to be sure -- don't you perceive I'm to be kept alive?" Which speech, on seeing the Jew stare like a fool, this mangled wretch accompanied with a loud and hearty laugh. Next observing the soldier that stood sentinel over him biting occasionally a piece of dry bread, he asked him how it came to pass that be, a white man, should have no meat to eat along with it? " Because I am not so rich," answered the soldier, "Then I will make you a present, Sir (said the negro). First pick my hand that was chopped off, clean to the bones; next begin to devour my body till you are glutted; when you will have both bread and meat, as best becomes you:" which piece of humour was followed by a second laugh. And thus he continued until I left him, which was about three hours after the dreadful execution.
'Wonderful it is, indeed, that human nature should be able to endure so much torture! which assuredly could only he supported by a mixture of rage, contempt, pride, and the glory of braving his tormentors, from whom he was so soon to escape.
'I never recall to my remembrance without the most painful sensation this horrid scene, which must revolt the feelings of all who have one spark of humanity. If the reader, however, should be offended with my dwelling so long on this unpleasant subject, let it be some relief to his reflection to consider this punishment not inflicted as a wanton and unprovoked act of cruelty, hut as the extreme severity of the Surinam laws on a desperate wretch, suffering, as an example to others, for complicated crimes; while, at the same time, it cannot but give me, and I hope many others, some consolation to reflect that the above barbarous mode of punishment was hitherto never put in practice in the British colonies. I must now relate an incident which, as it had a momentary effect on my imagination, might have had a lasting one on some who had not investigated the real cause of it, and which it gave me no small satisfaction to discover.
'About three in the afternoon, walking towards the place of execution, with my thoughts full of the affecting scene, and the image of the sufferer fresh in my mind, the first object I saw was his head, at some distance, placed on a stake, nodding to me backwards and forwards, as if he had been really alive, I instantly stopped short, and, seeing no person in the Savannah, nor a breath of wind sufficient to move a leaf or a feather, I acknowledge that I was rivetted to the ground where I stood, without having the resolution of advancing one step for some time; till, reflecting that I must be weak indeed not to approach this dead skull, and find out the wonderful phenomenon if possible, I boldly walked up, and instantly discovered the natural case, by the return of a vulture to the gallows, who perched upon it as if he meant to dispute with me this feast of carrion; which bird, having already picked out one of the eyes, had fled at my first approach, and, striking the skull with his talons, as be took his sudden flight, occasioned the motion already described. I shall now only add, that this poor wretch, after living more than six hours, had been knocked on the head by the commiserating sentinel, the marks of whose musket were perfectly visible by a large open fracture in the skull.'
The torture of a criminal during the course of his trial is a cruelty consecrated by custom in most nations. It is used with an intent either to make him confess his crime, or explain some contradictions into which he had been led during his examination; or to discover his accomplices; or for some kind of metaphysical and incomprehensible purgation of infamy; or, finally, in order to discover other crimes, of which he is not accused, but of which he may be guilty.
No man can be judged a criminal until he be found guilty; nor can society take from him the public protection until it have been proved that he has violated the conditions on which it was granted.
What right, then, but that of power, can authorize the punishment of a citizen, so long as there remains any doubt of his guilt? This dilemma is frequent. Either he is guilty or not guilty. If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary. If he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent whose crime has not been proved. Besides, it is confounding all relations to expect that a man should be both the accuser and the accused; and that pain should be the test of truth, as if truth resided in the muscles and fibres of a wretch in torture.
By this method the robust will escape and the feeble be condemned. These are the inconveniences of this pretended test of truth, worthy only of a cannibal, and which the Romans, in many respects barbarous, and whose savage virtue has been too much admired, reserved for the slaves alone.
What is the political intention of punishments? -- To terrify, and be an example to others. Is this intention answered by thus privately torturing the guilty and the innocent? It is doubtless of importance that no crime should remain unpunished: but it is useless to make a public example of the author of a crime bid in darkness. A crime already committed, and for which there can be no remedy, can only be punished by a political society with an intention that no hopes of impunity should induce others to commit the same. If it be true that the number of those who from fear or virtue respect the laws is greater than of those by whom they are violated, the risk of torturing an Innocent person is greater, as there is a greater probability that, ceteris paribus, an individual hath observed than he hath infringed the laws.
There is another ridiculous motive for torture -- namely, to purge a man from infamy. Ought such an abuse to be tolerated in the nineteenth century? Can pain, which is a sensation, have any connexion with a moral sentiment, a matter of opinion? Perhaps the rack may be considered as the refiner's furnace.
It is not difficult to trace this senseless law to its origin; for an absurdity adopted by a whole nation must have some affinity with other ideas established and respected by the same nation. This custom seems to be the offspring of religion, by which mankind, in all nations, and in all ages, are so generally influenced. We are taught by our infallible Church that those stains of sin contracted through human frailty, and which have not deserved the eternal anger of the Almighty, are to be purged away in another life by an incomprehensible fire. Now infamy is a stain; and, if the punishments and fire of purgatory can take away all spiritual stains, why should not the pain of torture take away those of a civil nature? I imagine that the confession of a criminal, which in some tribunals is required as being essential to his condemnation, has a similar origin, and has been taken from the mysterious tribunal of penitence, where the confession of sins is a necessary part of the sacrament. Thus have men abused the unerring light of revelation; and, in the times of tractable ignorance, having no other, they naturally had recourse to it on every occasion, making the most remote and absurd applications. Moreover, infamy is a sentiment regulated neither by the laws nor by reason, but entirely by opinion; but torture renders the victim infamous, and therefore cannot take infamy away.
Another intention of torture is to oblige the supposed criminal to reconcile the contradictions into which he may have fallen during his examinations; as if the dread of punishment, the uncertainty of his fate, the solemnity of the Court, the majesty of the judge, and the ignorance of the accused, were not abundantly sufficient to account for contradictions, which are so common to men even in a state of tranquillity, and which must necessarily be multiplied by the perturbation of the mind of a man entirely engaged in the thoughts of saving himself from imminent danger.
This infamous test of truth is a remaining monument of that ancient and savage legislation in which trials by fire, by boiling water, or the uncertainty of combats, were called judgments of God; as if the links of that eternal chain whose beginning is in the breast of the First Cause of all things could ever be disunited by the institutions of men. The only difference between torture and trials by fire and boiling water is, that the event of the first depends on the will of the accused, and of the second on a fact entirely physical and external; but this difference is apparent only, not real.
A man on the rack, in the convulsions of torture, has it as little in his power to declare the truth as, in former times, to prevent, without fraud, the effects of fire or boiling water.
Every act of the will is invariably in proportion to the force of the impression on our senses. The impression of pain, then, may increase to such a degree, that, occupying the mind entirely, it will compel the sufferer to use the shortest method of freeing himself from torment. His answer, therefore, will be an effect as necessary as that of fire or boiling water, and he will accuse himself of crimes of which he is innocent; so that the very means employed to distinguish the innocent from the guilty will most effectually destroy all difference between them.
It would be superfluous to confirm these reflections by examples of innocent persons who, from the agony of torture, have confessed themselves guilty: innumerable instances may be found in all nations and in every age. How amazing that mankind have always neglected to draw the natural conclusion! Lives there a man who, if he has carried his thoughts ever so little beyond the necessities of life, when he reflects on such cruelty, is not tempted to fly from society, and return to his natural state of independence?
The result of torture, then, is a matter of calculation, and depends on the constitution, which differs in every individual, and is in proportion to his strength and sensibility; so that to discover truth by this method is a problem which may be better resolved by a mathematician than a judge, and may be thus stated. The force of the muscles and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain necessary to make him confess himself guilty of a given crime.
The examination of the accused is intended to find out the truth; but if this be discovered with so much difficulty in the air, gesture, and countenance of a man at ease, how can it appear in a countenance distorted by the convulsions of torture? Every violent action destroys those small alterations in the features which sometimes disclose the sentiments of the heart.
These truths were known to the Roman legislators, amongst whom slaves only, who were not considered as citizens, were tortured.
They are known to the English, a nation in which the progress of science, superiority in commerce, riches, and power, its natural consequences, together with the numerous examples of virtue and courage, leave no doubt of the excellence of its laws. They have been acknowledged in Sweden, where torture has been abolished.
They are known to one of the wisest monarchs in Europe, who, having seated philosophy on the throne, by his beneficent legislation has made his subjects free, though dependent on the laws; the only freedom that reasonable men can desire in the present state of things. In short, torture has not been thought necessary in the laws of armies, composed chiefly of the dregs of mankind, where its use should seem most necessary. Strange phenomenon, that a set of men, hardened by slaughter and familiar with blood, should teach humanity to the sons of peace!
A very strange but necessary consequence of the use of torture is, that the case of the innocent is worse than that of the guilty. With regard to the first, either he confesses the crime which he has not committed, and is condemned; or he is acquitted, and has suffered a punishment he did not deserve. On the contrary, the person who is really guilty has the most favourable side of the question; for, if he supports the torture with firmness and resolution, be is acquitted, and has gained, having exchanged a greater punishment for a less.
The law by which torture is authorized says -- 'Men, be insensible to pain. Nature has indeed given you an irresistible self-love, and an unalienable right of self- preservation; hut I create in you a contrary sentiment, an heroical hatred of yourselves. I command you to accuse yourselves, amid to declare the truth, amidst the tearing of your flesh and the dislocation of your bones.'
Torture is used to discover whether the criminal be guilty of other crimes besides those of which he is accused, which is equivalent to the following reasoning -- 'Thou art guilty of one crime, therefore it is possible that thou mayest have committed a thousand others; but the affair being doubtful, I must try it by my criterion of truth.
The laws order thee to be tormented because thou art guilty, because thou mayest be guilty, and because I choose thou shouldest be guilty.'
Torture is used to make the criminal discover his accomplices; but, if it has demonstrated that it is not a proper means of discovering truth, how can it serve to discover the accomplices, which is one of the truths required? Will not the man who accuses himself yet more readily accuse others? Besides, is it just to torment one man for the crime of another? May not the accomplices be found out by the examination of the witnesses, or of the criminal -- from the evidence, or from the nature of the crime itself -- in short, by all the means that have been used to prove the guilt of the prisoner?
The accomplices commonly fly when their comrade is taken.
All man kind, being exposed to the attempts of violence or perfidy, detest the crimes of which they may possibly be the victims; all desire that the principal offender and his accomplices may be punished; nevertheless, there is a natural compassion in the human heart, which makes all men detest the cruelty of torturing the accused, in order to extort confession. The law has not condemned them; and yet, though uncertain of their crime, you inflict a punishment more horrible than that which they are to suffer when their guilt is confirmed. 'Possibly thou mayest be innocent; but I will torture thee that I may be satisfied: not that I intend to make thee any recompense for the thousand deaths which I have made thee suffer, in lieu of that which is preparing for thee.' Who does not shudder at the idea? St. Augustin opposed such cruelty; the Romans tortured their slaves only; and Quintilian, recollecting that they were men, reproved the Romans for such want of humanity.
If there were but one nation in the world which had abolished the use of torture -- if in that nation crimes were no more frequent than in others -- and if that nation be more enlightened and more flourishing since the abolition -- its example surely were sufficient for the rest of the world. England alone might instruct all other nations in this particular, hut England is not the only nation.
Torture hath been abolished in other countries, and with success; the question, therefore, is decided. Shall not a people who pique themselves on their politeness pride themselves also on their humanity? shall they obstinately persist in their inhumanity, merely because it is an ancient custom? Reserve, at least, such cruelty for the punishment of those hardened wretches who shall have assassinated the father of a family, or the father of his country; but that a young person who commits a fault which leaves no traces behind it should suffer equally with a parricide, is not this an useless piece of barbarity?