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 decided7 that he has broken the condition on which it was granted. What, then, is that right but one of mere8 might by which a judge is empowered to inflict9 a punishment on a citizen whilst his guilt6 or innocence10 are still undetermined? The following dilemma11 is no new one: either the crime is certain or uncertain; if certain, no other punishment is suitable for it than that affixed12 to it by law; and torture is useless, for the same reason that the criminal’s confession13 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 intimidation14 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 utterly15 useless. An evil that has been done and cannot be undone16 can only be punished by civil society in so far as it may affect others with the hope of impunity17. If it be true that there are a greater number of men who either from fear or virtue18 respect the laws than of those who transgress19 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 crucible20 of truth, as if the test of it lay in the muscles and sinews of an unfortunate wretch21. The law which ordains22 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 infamous23 crucible of truth is a still-existing monument of that primitive24 and savage25 legal system, which called trials by fire and boiling water, or the accidental decisions of combat, judgments26 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 purely27 physical and extrinsic28 to the sufferer; but the difference is only apparent, not real. The avowal29 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] inevitable30 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 profess31 to employ for its discovery.
Torture is a certain method for the acquittal of robust33 villains34 and for the condemnation36 of innocent but feeble men. See the fatal drawbacks of this pretended test of truth—a test, indeed, that is worthy37 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 lauded38 virtue. Of two men, equally innocent or equally guilty, the robust and courageous39 will be acquitted40, the weak and the timid will be condemned41, 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 acquit32 you; you, C D, in your weakness have yielded to it; therefore I condemn35 you. I feel that a confession extorted42 amid torments43 can have no force, but I will torture you afresh unless you corroborate45 what you have now confessed.’
The result, then, of torture is a matter of temperament46, of calculation, which varies with each man according[152] to his strength and sensibility; so that by this method a mathematician47 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 ascertainment48 of truth. But if this truth is difficult to discover from a man’s air, demeanour, or countenance50, 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 trifling51 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 thereby52 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 discretion53 of the judge.
It were superfluous54 to enlighten the matter more thoroughly55 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 tyrant56 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 uncertainty57 of the sentence, the legal pageantry, the majesty58 of the judge, the state of ignorance that is common alike to innocent and guilty, were not enough to plunge59 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 perturbed60 and wholly absorbed in the thought of seeking safety from imminent61 peril62.
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 ascertain49 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 inflicted63 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 torment44 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 condemns64 them to exile, and frees the country from the danger of fresh offences from them; whilst the punishment of the criminal who is caught attains65 its precise object, namely, the averting66 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 testimony67 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, purges68 from infamy, which is merely a moral condition. Is pain, then, a crucible, and infamy a mixed impure69 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 infliction70!
It is not difficult to go back to the origin of this ridiculous law, because the absurdities71 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 derived72 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 Supreme73 Being must be purged74 by an incomprehensible fire. Now, infamy is a civil stain; and as pain and fire take away spiritual and incorporeal75 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 requisite76 for condemnation, has a similar origin;—because in the mysterious tribunal of repentance77 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 docile78 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 monarchs79 of Europe, who, taking philosophy with him to the throne, has made himself the friend and legislator of his subjects, rendering80 them equal and free in their dependence81 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 massacre82 and bloodshed the most humane83 method of conducting trials.
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1
consecrated
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| adj.神圣的，被视为神圣的v.把…奉为神圣，给…祝圣( consecrate的过去式和过去分词 )；奉献 | |
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pretext
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| n.借口，托词 | |
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accomplices
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| 从犯，帮凶，同谋( accomplice的名词复数 ) | |
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purging
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| 清洗； 清除； 净化； 洗炉 | |
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infamy
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| n.声名狼藉，出丑，恶行 | |
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guilt
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| n.犯罪；内疚；过失，罪责 | |
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decided
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| adj.决定了的，坚决的；明显的，明确的 | |
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mere
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| adj.纯粹的；仅仅，只不过 | |
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inflict
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| vt.(on)把…强加给，使遭受，使承担 | |
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10
innocence
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| n.无罪；天真；无害 | |
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dilemma
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| n.困境，进退两难的局面 | |
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12
affixed
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| adj.[医]附着的，附着的v.附加( affix的过去式和过去分词 )；粘贴；加以；盖（印章） | |
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confession
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| n.自白，供认，承认 | |
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intimidation
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| n.恐吓，威胁 | |
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utterly
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| adv.完全地，绝对地 | |
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undone
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| a.未做完的，未完成的 | |
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impunity
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| n.(惩罚、损失、伤害等的)免除 | |
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virtue
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| n.德行，美德；贞操；优点；功效，效力 | |
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transgress
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| vt.违反，逾越 | |
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crucible
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| n.坩锅，严酷的考验 | |
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wretch
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| n.可怜的人，不幸的人；卑鄙的人 | |
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ordains
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| v.任命（某人）为牧师( ordain的第三人称单数 )；授予（某人）圣职；（上帝、法律等）命令；判定 | |
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infamous
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| adj.声名狼藉的，臭名昭著的，邪恶的 | |
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primitive
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| adj.原始的；简单的；n.原(始)人，原始事物 | |
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savage
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| adj.野蛮的；凶恶的，残暴的；n.未开化的人 | |
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judgments
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| 判断( judgment的名词复数 )； 鉴定； 评价； 审判 | |
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purely
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| adv.纯粹地，完全地 | |
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extrinsic
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| adj.外部的；不紧要的 | |
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avowal
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| n.公开宣称，坦白承认 | |
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inevitable
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| adj.不可避免的，必然发生的 | |
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31
profess
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| v.声称，冒称，以...为业，正式接受入教，表明信仰 | |
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acquit
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| vt.宣判无罪；(oneself)使(自己)表现出 | |
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robust
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| adj.强壮的，强健的，粗野的，需要体力的，浓的 | |
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villains
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| n.恶棍( villain的名词复数 )；罪犯；（小说、戏剧等中的）反面人物；淘气鬼 | |
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35
condemn
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| vt.谴责，指责；宣判(罪犯)，判刑 | |
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condemnation
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| n.谴责; 定罪 | |
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worthy
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| adj.(of)值得的，配得上的；有价值的 | |
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38
lauded
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| v.称赞，赞美( laud的过去式和过去分词 ) | |
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courageous
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| adj.勇敢的，有胆量的 | |
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40
acquitted
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| 宣判…无罪( acquit的过去式和过去分词 )； 使（自己）作出某种表现 | |
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41
condemned
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| adj. 被责难的, 被宣告有罪的 动词condemn的过去式和过去分词 | |
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42
extorted
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| v.敲诈( extort的过去式和过去分词 )；曲解 | |
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43
torments
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| （肉体或精神上的）折磨，痛苦( torment的名词复数 )； 造成痛苦的事物[人] | |
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44
torment
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| n.折磨；令人痛苦的东西(人)；vt.折磨；纠缠 | |
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45
corroborate
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| v.支持，证实，确定 | |
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46
temperament
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| n.气质，性格，性情 | |
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47
mathematician
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| n.数学家 | |
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48
ascertainment
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| n.探查，发现，确认 | |
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49
ascertain
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| vt.发现，确定，查明，弄清 | |
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50
countenance
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| n.脸色，面容；面部表情；vt.支持，赞同 | |
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51
trifling
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| adj.微不足道的；没什么价值的 | |
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52
thereby
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| adv.因此，从而 | |
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53
discretion
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| n.谨慎；随意处理 | |
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54
superfluous
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| adj.过多的，过剩的，多余的 | |
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55
thoroughly
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| adv.完全地，彻底地，十足地 | |
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56
tyrant
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| n.暴君，专制的君主，残暴的人 | |
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57
uncertainty
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| n.易变，靠不住，不确知，不确定的事物 | |
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58
majesty
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| n.雄伟，壮丽，庄严，威严；最高权威，王权 | |
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59
plunge
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| v.跳入，(使)投入，(使)陷入；猛冲 | |
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60
perturbed
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| adj.烦燥不安的v.使（某人）烦恼，不安( perturb的过去式和过去分词 ) | |
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61
imminent
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| adj.即将发生的，临近的，逼近的 | |
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peril
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| n.(严重的)危险；危险的事物 | |
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inflicted
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| 把…强加给，使承受，遭受( inflict的过去式和过去分词 ) | |
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64
condemns
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| v.（通常因道义上的原因而）谴责( condemn的第三人称单数 )；宣判；宣布…不能使用；迫使…陷于不幸的境地 | |
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65
attains
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| （通常经过努力）实现( attain的第三人称单数 )； 达到； 获得； 达到（某年龄、水平、状况） | |
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66
averting
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| 防止，避免( avert的现在分词 )； 转移 | |
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67
testimony
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| n.证词；见证，证明 | |
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68
purges
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| 清除异己( purge的名词复数 )； 整肃（行动）； 清洗； 泻药 | |
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69
impure
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| adj.不纯净的，不洁的；不道德的，下流的 | |
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infliction
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| n.（强加于人身的）痛苦，刑罚 | |
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absurdities
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| n.极端无理性( absurdity的名词复数 )；荒谬；谬论；荒谬的行为 | |
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72
derived
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| vi.起源；由来；衍生；导出v.得到( derive的过去式和过去分词 )；（从…中）得到获得；源于；（从…中）提取 | |
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supreme
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| adj.极度的，最重要的；至高的，最高的 | |
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purged
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| 清除（政敌等）( purge的过去式和过去分词 )； 涤除（罪恶等）； 净化（心灵、风气等）； 消除（错事等）的不良影响 | |
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incorporeal
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| adj.非物质的，精神的 | |
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requisite
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| adj.需要的，必不可少的；n.必需品 | |
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repentance
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| n.懊悔 | |
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docile
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| adj.驯服的，易控制的，容易教的 | |
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monarchs
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| 君主，帝王( monarch的名词复数 ) | |
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80
rendering
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| n.表现，描写 | |
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81
dependence
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| n.依靠，依赖；信任，信赖；隶属 | |
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82
massacre
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| n.残杀，大屠杀；v.残杀，集体屠杀 | |
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humane
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| adj.人道的，富有同情心的 | |
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