This part of the regular course is omitted by few, and in some cases is adopted as a ruling life-trait. This was probably the usual result in those early days.
Another discouraging obstacle to any pleasant theory is that apelike propensity for imitation which kept primitive races following the old tracks of their predecessors. Antiquated custom gave them inviolable laws, against which reason and justice might protest in vain. The mere imitative trait has sometimes ruled the action and belief of masses of mankind as surely and unthinkingly as it does a colony of the simian tribe or a community of cigarette-using boys.
A race of beings so tainted with original savagery, so ruled by imitation, and so averse to change, must have found it hard to abolish torture from the court-room. To accomplish the reform one of the grandest moral battles of the world had to be fought. An ethical rebellion against the allied powers of monarchy, hierarchy, and aristocracy had to be triumphantly carried through. Necessarily there were brave leaders, who went into the fray with their eyes open to the fate of Jerome and Huss, of an earlier age, who for having dared attack the sin of torture were burned alive by the offended Church.
It was but recently, speaking comparatively, that the Inquisition, both secular and ecclesiastical, was in full force, and that the reform mentioned was made successful. When the code before us was printed at Vienna, the present writer's grandfather was a youth of thirteen years. America was then already reformed from her imported sins against justice. The whirlwind of delusion which culminated at Salem had been over for seventy-seven years, and its reaction had blotted from the minds of most Americans much of the witch-belief of former ages. Benjamin Franklin had long been the ambassador of America to his king, pleading for political rights. England had partly reformed her cruel laws. Human torture was not legal in America, save under the cloak of African slavery.
Yet in the Theresian code. Article 38 is found filling eleven broad pages with the law of torture, as if it were a fundamental institution which would exist forever. It specifies the cases in which courts are warranted in using torture to induce confession, which seem worth giving in full:
When one is accused by one credible, sworn witness, aided by evidence of previous bad character.
When, after detection in the act, he boldly denies it.
When informed against by an accomplice.
When he has admitted the offense which was known to be committed.
When any two or more of the following causes concur to