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' Holtzendorff, Handbuch des deutschen Strafrechts, 67. Concerning
the conditions of penal law see also Fr. Heinemann, Der Richter und die
Bechtspflege in der deutschen Vergangenheit. Leipzig, 1900. {Monographien
zur deutschen Kulturgesch., edited by G. Steinhausen, vol. iv.) See
also R. Quanter, Die Folter in der deutschen Bechtspflege einst und jetzt.
Dresden, 1900.

- See Seifart, 668-672, and Knapp, Das alte Niirnberger Kriminalrecht,
Berlin, 1891.



INCREASE OF CRIME— CRIMINAL JUSTICE 177

rack, and moreover that it was a dangerous and doubtful
means of eliciting the truth, still held firmly to the
principle that for tliis last purpose torture by the
rack should be used in case of necessity. The jurist
Peter of Kavenna, who in 1511 advocated the abohtion
of torture, remained, as did later on the Spaniard Luis
Vives, an isolated phenomenon.^ ' How extremely
doubtful a means was this cruel practice ' people learnt
from experience (though without profiting thereby)
from numerous horrible cases, the most horrible being
one in Pomerania, where at Stettin, in 1518, a church-
robber and murderer was put in prison, who confessed
that once before he had committed a church-robbery,
in consequence of which, on false suspicion founded on
' confessions ' wrung from the said culprit under torture,
three priests, seventeen sextons, eighteen other men,
and eighteen women and girls, altogether 118 were
executed.2

In the new law-books, which attempted to remedy
the intolerable conditions in Germany, torture was
retained, as, for instance, in the Bamberg criminal
ordinance pubhshed in 1507 by the Bamberg Prince-
Bishop George. The originator of this statute-book
was John, Baron zu Schwarzenberg, who for a quarter of
a century filled the highest secular office in the Bishopric
of Bamberg.'^

From the Bamberg criminal ordinance there resulted

' Bahische Sludien, xx. 160. - Self art, 687.

■' Stintzing, 612 &., 618 ff. Schwarzenberg very soon went over to the
new doctrine, left his Bamberg office and undertook the post of first court-
steward to the Margraves Casimir and George of Brandenburg. He
died on October 21, 1528. Concerning Schwarzcnberg's son Cluistoplier,
who remained true to the old Church, see Paulus in the Histor.-polit. Bl.,
vol. cxi. (1893) p. 10 ft'., and vol. cxii. p. 144 ff,

VOL. XVI. N



178 HISTOKV OF THE GERMAN PEOPLE

* the |)oual cuile of the Emperor Charles V. and of the
Holy lionian Empire, which was compiled and ratified
at the Diets of Augsburg and Katisbon of the years
1530 and 1532.' ' On the production of this new penal
code, the so-called Carohna, Schwarzenberg also exer-
cised an important influence. It was by no means the
intention of this great jurist to molUfy the enforcement
of criminal law, but only to estabhsh it on a juster
footing, so that it should fall on the guilty only but
should fall on them in merited measure with full force
and severity.- As regards the rack or torture, the
Carohna sought to restrict its use as much as possible
by laying down minute prescrij)tions for its application.

1 See Holtzendorff, Slrafrecht, i. 67 ff. ; Stintzing, 621 ff. ; Glaser,
Strafprozess, i. 78 ff. ' Die peinliche Gerichtsordnung Kaiser Kai'ls V.
kritisch herausgegeben von J. Kohler und W. Schcel ' {Die Karolina und
ihre V orgdngerinnen, vol. i.), Halle, 1900. See Deutsche Lit.-Ztg., 1900,
iv. 49, and Hislor. Zeitschr. Ixxxviii. 87 ff.

- Stintzing, 620-621. Knapp, Das alte Niirnberger Kriminalrecht,
says at p. 9 : ' The Carolina — like the ancient code of Suabian law — forbids
thieves under fourteen to be put to death, but at the same time nullifies
this decree by leaving it to the discretion of the judges in case of the
delinquent being " big and dangerous," thus letting wickedness make
up for age : from this, severity of doubtful advantage necessarily ensues.
Thus at Nvu:emberg young lads were frequently hanged as " dangerous "
who according to the old principle would at the outside have only been
banished ; nine-year-old boys dragged the galley-slave's irons. An out-
and-out tortiu:er's treatment was dealt out to five young thieves from
nine to eleven years old, by the hangman. Master Franz Schmidt (1575) :
twice they were exposed at the piUory, then birched in the dungeon,
lastly, each being tied to an older criminal, they were led to the gallows.
There the man was hanged whilst the boy ascended the ladder to take his
turn. At this point the priests intervened and asked for mercy, which
was granted and the boys were banned from the town and district. The
priests' intervention was pre-ai'ranged, it being only intended to make the
boys suffer the highest pitch of agony. In 1540 and 1547 two thirteen-
year-old murderers were beheaded and afterwards broken on the wheel.
Girls who had killed their illegitimate childien were, quite exceptionally,
sometimes treated with more leniency on account of their reckless youth.'



INCREASE OF CRIME— CRLMINAL JUSTICE 179

' Only when it was a question of a capital crime, of
punishment by death or hfe-long imprisonment, was
torture to be resorted to ; and even then the circum-
stances of the case were to be inquired into. Further
there must be adequate grounds for strong suspicion
against the accused person. Also, the degree of torture
was to be regulated according to the physical strength
of the culprit. Confessions made under torture were not
to have any importance attached to them, the statements
of the tortured person were not to be written down ;
on the contrary, as soon as he or she was on the point of
making confessions, the torturing apparatus was to be
removed, and an interval was to elapse before the trial
took place, and then only were the culprit's statements
to be protocolled. Finally, the tortured person must
be called on to confirm said statements at another trial
conducted several days later." ^

These rules of the criminal ordinance of Charles V.
were very seldom observed in the sixteenth and seven-
teenth centuries. Almost everywhere throughout the
empire the tribunals went far beyond the Carohna in
the apphcation of torture. Ghastly are the descriptions
of the instruments of torture used in that age of depravity.
Collections of legal antiquities are still at the present day
over-rich in objects used for extorting proofs of guilt from
the unhappy victims of the justice of that period.
Among the mildest means for extorting confessions were
the thumbscrews, small iron presses of which the inner
sui'faces were indented. Between these indented surfaces
the upper section of the thumb was screwed, and fre-
quently the victim's nails came off or the finger was
mangled. A smaller kind of thumbscrew was called

' CaUnich, 285-280, and Glaser, Strafprozess, i. 87 ft.

N 2



180 lUSTOKV OF rilH CJERMAN PEOPLE

' JimglVnistuik." liKuiiiparably luorc painlul were the
leg-screws or Spanish boots, * larger presses which were
fastened round the calves and shin-bones and gradually
screwed up.' To heighten the torture the executioner
would pause with the screwing from time to time and
knock with a hammer or a key against the shin-bone.
A small indented board was so fixed inside the press
that it came in touch with the bone. Another very
painful torture was practised by means of ropes, the
thickness of a goose-quill, provided with handles at
their extremities. These ropes were wound once or
twice round the upper arm of the accused and set in
saw-hke motion by the torturers pulhng the handles
to and fi'o. The friction soon broke and tore off the
skin. More painful still was ' the dry pull,' that is the
stretching of the hmbs on a ladder or a rack. This, as a
rule, was only applied in tortures of the third degree.
The stretching was effected by weights, more or less
heavy, attached to the feet of the victim who, by his or
her arms tied behind the back, was swinging from a hook
or a beam.i

Had these means proved unsuccessful, the torture
was increased. * The spiked hare,' a wooden cylinder
with spikes, was rolled over the stretched victim's back
and the points pressed into the spine. A still more
horrible torment is described in the ' direction for
torturing.' Six or more goose-quills are dipped in
molten sulphur, lighted and thrown at both sides
of the \dctim : there they stick and spread the
burning sulphur over the body. Or pointed sticks
of wood are inserted under the ten finger nails, the
arms of the racked man let down a httle, and then

' Seifart, 674-675.



INCREASE OF CRIME— CRIMINAL JUSTICE 181

fire is set to the sticks, which burn about two
minutes. Or flaming pitch-torches are appHed to the
body so as to leave flakes of burning pitch on the skin
which take a minute to burn out. Or the wretches are
placed on red-hot bricks and held down by four strong
men : this the victims declare to be the most painful of
all tortures. With instruments of this sort for extorting
confessions, it is no wonder that many quite innocent
people should have pleaded guilty in order to escape
the agonies of torture. Thus Sastrowe relates how, in
1544, a man confessed to a murder in which he had had
absolutely no part * to avoid trial by torture of which he
had a far greater horror than of death.' ^

Horrible, too, was the levity with which in many
places the rack was used. Thus, for instance, in Hamburg,
at the beginning of the sixteenth century, a very culti-
vated, honourable patrician, who had been falsely accused
by wicked men of an abominable crime and kept in
prison for twelve years, was four times subjected to
torture. They could not, however, extort from him a
false confession, and at last the appeals of his numerous
friends, and an imperial injunction accompanied with
a threat of the ban, procured him release.^

Many judges and criminahsts invented numbers of
new instruments of martyrdom, and they also extended
the duration of the tortures beyond the time allowed
by the law. The names of these new instruments,
of German origin as their names betoken, were as
follows : ' The Pomeranian cap, an iron barbed knotty
rope to be pressed round the head ; the Mecklenburg
instrument, with which the thumbs and big toes were
screwed together ; the Brunswick boot, the Liineburg

' Sastrowe, i. 83-87. ^ Grevius, 387-389.



182 lllsrOKY 01^ THE GERMAN PEOPLE

rliair, tlie I\lnnnlioim Imck, the BaniLorg instrument/
The Diitcli jurist Danihouder (f 1581), who through
his writings greatly influenced German law practice,^
speaks of this system of torture as being rarely resorted
to in some places, and obsolete in others. But that
methods of a truly diabolical nature were unscrupu-
lously used in many German towns in Damhouder's
time, is shown by a case that occurred in 1570. In that
year, in Frankfort-on-the-Maine, an accused person of
good standing was subjected to every known device of
torture in the vain hope of extorting from him the con-
fession of his supposed crime : when all other means had
been exhausted without any result, a bowl containing
a live rat was placed bottom upwards on his naked
flesh and tightly bound to him.^ If such a proceeding
was possible in a large imperial city it can easily be
imagined what brutahty might be practised in the
tribunals of smaller territories, where the executioners
and their bloody martyr work were often under the
direction of quite uneducated and low clerks. Dam-
houder gives fuller details concerning such devils in
human form, who with more than bestial ferocity took
a special dehght in maltreating the victims consigned
to them for torture, in the most unheard-of ways.^

"Wholly apart, however, from such outrageous excesses,
the methods of torture which Damhouder describes every-
where as an eye-witness are quite sufficiently horrible.
The patient, he tells us, having been undressed, and his
hands tied on his back, is fastened to a bench. Strings
wound around his big toes and running on rollers serve
to stretch the body with measurable violence. Addi-
tional pain is inflicted by winding strings round calves

' Stintzing, 604 ff. -^ Kriegk, i. 216. •' Seifart, 682.



INCREASE OF CRIME— CRIMINAL JUSTICE 183

and ankles and pulling the body downwards. Another
kind of torture consisted in pouring cold water down the
victim's throat until his body swelled up to the utmost
limits. ' These/ says Damhouder, * are the tortures
in use with us. In case a first apphcation fails to extort
confession, a second is made and a severe scourging
added.' He thinks these kinds of torture the most
efficacious for obtaining the victim's avowal of his mis-
deeds. ^

The way in which the system of torture kept pace
with the continuous increase of demorahsation is shown
by the blood-curdhng description given by John Grevius
in 1624. * There are nowadays,' he says, * more kinds
of torture than there are Hmbs to the human body. It
often happens that all those different kinds are applied
to the same person almost all together.' ^ Of these
methods Grevius mentions the following : Singeing
of the whole body ; enclosing in the so-called brass bull,
which is made red-hot ; pouring great quantities of urine
down the throat ; enforced sleeplessness ; tormenting
the already tortured body by the stings of bees and
wasps ; apphcation of vinegar, salt and pepper to the
wounds and sores ; sulphur injections in the nose. As
one of the most unbearable tortures, Grevius gives the
following : the patient being bound to a form, his feet
are smeared with salt water : then a goat is brought in
to Hck the soles.

More hght will possibly be thrown on the penal pro-
cedure of that demoralised age by repeating a story of
the year 1576, taken ])y Grevius from a documentary

' Damhoudor, cap. 37, 19 sq. Cf. ' Tormcnti ^i-nwi^ liodiornos apud
carnifices usitatum,' in Gilhausen, 433.
- GreviuH, 5G,



ISl Hisrom' OK tjik cerman people

ro])i)r< of Tot or l^orriiis, tlian by fuitlier enumeration
of all the (litferent devices for inllieting suffering. This
case, which occurred in North Holland, focusses, as in a
single picture, almost all the liorrors and brutalities of
the torture system of that period.'

The Stadholder William of Orange, in North Holland,
had issued a manifesto, to the effect that a watchful eye
was to be kept on the foreigners who had poured into
the Province, as they were suspicious to him. There-
upon over twenty vagrant beggars were put in prison.
The Stadholder appointed the Baihi! of North Holland,
together with three officials from Hoorn, Alkmar, and
Bredenrode as * commissaries ' or judges. The prisoners
at once confessed to several thefts and similar trans-
gressions. Torture was then resorted to and they were
questioned about the peasants with whom, during their
wanderings through the villages, they had had intimate
relations. The beggars named several, who they said,
had repeatedly given them shelter and liberal alms,
amongst others a certain Jacob Cornelii and his son
Nannius Jacobi, two very rich men. The judges then
asked whether these peasants had not bribed them with
money to set fire to several villages at the moment when
the Spaniards should attack the Province ; the com-
missaries added that forgiveness and release would be
granted them if they frankly told the whole truth. The
beggars at last declared that Jacob Cornehi and his son
had bribed them in this way.

As the torture-master said later on, by order of
the commissaries, one of these poor men, John Driemont
by name, had his hands fastened behind his back and
weights of two cwts. hung from his big toes. The judges,

' Grevius, 540-560.



INCREASE OF CRIME— CRIMINAL JUSTICE 185

meanwhile, read out from a sheet of paper the names of
different peasants and asked whether these had not
incited him to incendiarism. This questioning was
accompanied with occasional injunctions, such as :
' You must acknowledge it ; we know it well enough
already ; you must accuse them or you will be tortured
hke this every day/ The beggar kept silence. The
commissaries then went off to dine in the inn ' Zum
Athiopier,' having first ordered the torture-master
to continue the torture without slacking. For three
hours the man endured his martyrdom, and then
begged that the judges might be told he could hold out
no longer. They kept him waiting another half-hour,
and when at last they appeared, they asked whether the
victim wanted to make a declaration. ' What do you
want to hear from me, gentlemen ? ' asked the latter.
They said : ' Tell us the names of the accomplices who
helped you in your treachery, and we will grant you
your life." These promises and the intolerable suffering
he was undergoing moved the unhappy man at last
to accuse the peasants whose names were on the list.
He did not, however, escape the funeral pile. Arrived
at the place of execution he fell on his knees and called
God to witness that he and the peasants were as little
guilty of treason as the flint-stones which covered the
place of execution, or as any infant that had only just
been born the night before. The rest of the beggars
were also executed ; one here, another there ; and
all of them, in sight of death, declared before the
preacher of the place and a crowd of lookers-on that
the peasants were not guilty. Against the peasants
there was no evidence but the first statement of the
beggars. Nevertheless the commissaries had them



186 HISTORY OF THE GERMAN PEOPLE

iniprisoned and tortured. More than eight cans of
brandy iUmied up round the body of Jacob Cbrnehi,
M'hich became black all over, whilst all the flesh was
burnt off the soles of his feet. Still no confession could
be extorted from him. After he had been subjected
to fresh brutal torture the next morning, he was taken
in the afternoon before the commissaries. He uttered
a few words and then collapsed in death before their
eyes. ' There, there,' they exclaimed, ' the devil has
twisted his throat round ; he is dragging the rascal
with him into hell ! ' His corpse was cut up in little
pieces, although he had confessed nothing, and others
praised his piety and devoutness. From the father
they passed on to the son. Nannius Jacobi was tortured
twenty-three times : wasps, bees, red-hot coals, burning
candles, and so forth, being all used for the purpose.
For six days he was allowed to suffer thirst, although
he begged piteously for a cool drink. Kats, incited to
bite by heat, were placed on his bare breast. The
Stadholder himself had sent these animals. Other
methods of torture employed were of such sort that
decency forbids their description. Nannius at last
said ' Yes ' to everything that the commissaries wanted
to learn from him, and they pronomiced the death-
sentence over him with the statement : ' Whereas
Nannius Jacobi, lately under arrest, has without any
torture and iron instruments, confessed, &c.' But
when Nannius was brought to Hoorn to the place of
execution, he declared solemnly that all his statements
were utterly untrue, and that only the pains of torture
and false promises had wrung them from him. A
rising of the people was apprehended, and hence the
execution was put off. In the judgment-hall the



INCREASE OF CRIME— CRIMINAL JUSTICE 187

officials heaped on their victim the bitterest reproaches ;
they told him that one Hmb after another would be
torn from his body if he spoke again of his innocence.
The next day the commissaries went to Nannius, who
again declared his own innocence and that of the
others. They gave him Spanish wine to drink till he
was intoxicated, and then took him back to the place
of execution. On his attempting once more to stammer
out a few syllables in his own justification, John Epes,
the preacher of the place, drowned his words with loud
shouting. The populace groaned when they saw the
poor man die. From that time those four commissaries
were called the ' Bloody Scourges ' ; they soon became
objects of universal hatred ; the magistrates of Hoorn,
and the Prince of Orange himself, found themselves
compelled to stem the pubhc disorder and to proclaim
openly the innocence of several accused peasants.

Similar cases are reported from elsewhere, especially
from Saxony, where, in one instance, the Chancellor Briick
caused a ducal secretary, on a false accusation, to be put
on the rack twice and made the executioner keep the
delinquent so long on the stretch that he said at last ' if
he stretched him out any more he would snap hke a cord.' ^

The fiendish brutality of the torture system led to
a result curiously significant of the times. Among the
numerous robber and gipsy bands of the sixteenth century
there were actually some malefactors who, in the depths
of the forests, used to practise on each other the worst
refinements of martyrdom, in order, in cases of arrest,
to be hardened against the torture that awaited them.^

' See present work, vol. vii. 396 ff.

- The imperial coimiiissary J. Danilioudcr (f 1581) says in his Pnirfica
rerum criminalium : ' Atque inter hviiusceniodi rej)eiies (cxpc^rtus et ex



188 HISTORY OF Till-: GERMAN PEOrLE

A T.iitlioran preacher wrote in 1583 : ' In our days,
wliilst all true :irt is on the wane, men's minds are
intent upon the art of torturing : new and extra-
ordinary instruments of martyrdom are invented, and
tlie poor martyrs are mocked and houghed at in a
way revolting to a Christian heart. The comic side
of old German penalties gave place to pleasures of the
torture-chamber. The judicial records delighted in
humorous descriptions of these horrors. The execu-
tioner was called Master Oh Woe ! Master Jack Ketch
or Merry Andrew, Master Fix, Master Kurzab (short
and done with), Johnnie of the Rope ; he was expected
to teach the victim fiddling on the rack and making
ready for a happy new year. The cat-of-nine-tails
gave the victim the " minor orders " for the gallows
and trussed him up. The gallows was " Three-legs "
and the finger-post to heaven. Being hanged was to
perform a merry Ginkle-Gankle, to be poisoned with a
penny-bun from the ropemaker's shop, to serve as
sign-board to the Three-Posts inn ; to dance with the
four winds, to wed Miss Hemp, and such hke. Even
after the death-sentence had been pronounced the
judges could still indulge in a little more torturing a
couple of weeks or days before the execution in the
hope of extracting further confessions.'

Much of this torture was nothing more than a kind
of secret execution, as, for instance, in the case of the

propria ipsorum confessione loquor), qui sese mutuis suppliciis in nemoribus
excamificant et ad omne tormentorum genus forti animo perferendum
decent, exercent et obdurant, ne quando capti serioque torturam subeuntes
tormentis cederent, sed uti cuncta exercito corpore et animo gustatis
poenis edocto et obfirmato constanter citra ullam confessionem ulliusve
proditionem perferrent.' Cf. Seifart, 679. Grevius (p. 215) refers to this
passage in order to show tlie uselessness of torture for procuring evidence.



INCREASE OF CRIME— CRIMINAL JUSTICE 189

* Nuremberg Maiden,' a hollow iron statue, seven feet
high, representing a burgher woman in the dress of the
sixteenth century, by which the dehnquent was, as it
were, embraced and at the same time cut into pieces by
twenty- three four-edged daggers.^

Even the defenders of torture admitted that : ' Nowa-
days there are instruments of torture in use in Christen-
dom, which must be called horribly cruel, and in many
places one meets with judges, who often are guilty of no
slight wrong in that they resort so lightly and hastily
to torture ; but these abuses can all be abohshed or
avoided without doing away with the system: the
judges should conscientiously proceed according to the
explanations of the laws appended by the legal in-
structors, and above all they should attend to the
numerous admonitions and precautionary rules by
which the torture system is regulated/ ~

Although the too barbarous cruelty of the tortures
inflicted was almost universally recognised, nevertheless
those noble-minded men who, in the midst of the general
depravity, advocated the principles of humanity and
denounced torture as iniquitous, did not carry their
point.

One of the first who stood up against the use of torture
in the sixteenth century was the renowned Spanish
humanist and theologian, Luis Vives (f 1540). In his
commentary on Augustine's ' City of God ' he expressed
his wonder that Christians should still retain the

' Berlinische Nachrichten von Slaais- unci gelehrten Sachen. 1838,
No. 282, Bcilagc. Cf. Lisch, Jahrbiicher, vi. 198-200, according to whom



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