6.16. 16. Of the Rack.
The wickedness of mankind makes it necessary for the law to suppose
them better than they really are. Hence the deposition of two witnesses
is sufficient in the punishment of all crimes. The law believes them, as
if they spoke by the mouth of truth. Thus we judge that every child
conceived in wedlock is legitimate; the law having a confidence in the
mother, as if she were chastity itself. But the use of the rack against
criminals cannot be defended on a like plea of necessity.
We have before us the example of a nation blessed with an excellent
civil government,
[55]
where without any inconvenience the practice of racking criminals is rejected.
It is not, therefore, in its own nature necessary.
[56]
So many men of learning and genius have written against the custom
of torturing criminals, that after them I dare not presume to meddle
with the subject. I was going to say that it might suit despotic states,
where whatever inspires fear is the fittest spring of government. I was
going to say that the slaves among the Greeks and Romans — but nature
cries out aloud, and asserts her rights.
Footnotes
[56]
The citizens of Athens could not be put to the rack (Lysias,
"Orat. contra Agorat.") unless it was for high treason. The torture was
used within thirty days after condemnation. (Curius Fortunatus. "Rhetor,
scol.," ii.) There was no preparatory torture. In regard to the Romans,
the Leg. 3, 4, "Ad leg. Jul. Majest.," show that birth, dignity, and the
military profession exempted people from the rack, except in cases of
high treason. See the prudent restrictions of this practice made by the
laws of the Visigoths.
