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Page:Popular Science Monthly Volume 44.djvu/675

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List of possible mitigating circumstances under which prosecution may be relaxed and penalties reduced.

Scale of punishments for different grades, and forms to be used in pronouncing sentence, after torture and conviction.

The irrepressible savage love of causing pain was shown by the methods of execution as well as those of examination and trial. A translation of the prescribed forms of final judgment exhibits a tediously elaborate array of fiendish methods to make death slow and agonizing, and strike terror into myriads of beholders. Though foreign to our present topic, they illustrate the ruling passion of that age.

The chapter on allowing the accused the privilege of attorney and defense, begins with the fine assertion that defense is to be denied to no one. Then comes an intricate list of conditions and exceptions, which narrows the privilege to a very small chance. The final condition, however, might well be adopted for the reform of modern courts: "Before the defensor takes up the case of a prisoner, he shall bind himself not to act dishonestly to suppress the truth, but to do everything in bona fide."

To determine guilt or innocence, the ancients that is, savage races in general have used all sorts of divination, more or less senseless or cunning. There were water tests, fire tests, poison tests, and exposure to wild beasts. One favorite fashion was by single combat, which has degenerated into the modern duel. The wager of battle, like all the rest, presumed the idea that the Deity would interfere to protect the guiltless. Races sprung from Viking stock were especially liable to this error, which even to-day is firmly rooted in the minds of whole nations when pugnaciously disposed.

In trying to account for judicial torture, some have held it a sequel and substitute for the wager of battle, showing a moral advance of ideas in the growth of the nation. But this theory hardly fits with the great antiquity and wide extent of the system. If torture was a sequel of the judicial duel, then it was a case of retrograde evolution; for the high moral features of the combat, such as faith in divine help, trust in a just cause, fair play, and championship of the innocent, were thrown aside. They were exchanged for a system of mean, cowardly cruelty, all the power of the rulers working out hatred upon one defenseless prisoner in the secrecy and safety of a dungeon vault.

It is also idle to claim that torture was based on that sophism credited to Jesuits of old, that it was lawful to do evil to attain a good result; for torture was ancient before Loyola began his work. On the other hand, it is idle to make the common assertion that all progress, conscience, and mercy were conferred on the world by some particular religious system or event. For it