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there appears to have been also an ' iron maiden ' at the castle at Schwcrin.

- Grevius, 134-135. The heartlessncss not seldom shown by both
judge and executioner in the infliction of torture is described by Grevius
(315-317) in a revolting manner.



190 HIS'I'OKV 01-' TIIK OKRMAN PEOPLK

lica I hellish systcjn of torture. * There are many savage
nations/ lie says, ' who think it cruel and inhuman to
torture a man whose guilt is still a matter of doubt. We,
however, we who are blessed with all the culture of which
man is worthy, we plague and torture our fellow-creatures
(in order forsooth that they should not be executed when
innocent) in a manner which makes them greater objects
of pity than if they were put to death at once. In such
awful wise do the torturers too often exceed the worst
horrors of death. Do we not daily hear of people who
would far rather submit to death than to torture ?
Sure of their sentence, they often confess to crimes which
they have not committed, only to escape being tortured.
Verily, verily we have hangmen's hearts : we can endure
and allow that such bitter tears and groans should be
forced out of men and women of whom we do not even
know that they are guilty.' i

Vives sums up his views in the words : ' Very
weighty are all the arguments brought forward against
torture ; what, meanwhile, is said in its defence is
empty, worthless and untenable.' "

It was the voice of the preacher in the wilderness.
For a long space of time nobody dared again to
proclaim such opinions. It was already going to great
lengths if, amid the growing demorahsation, anyone
ventured to speak against the abuse of torture, or
when so enhghtened a prince as Maximihan I. of Bavaria
attempted to bring about a milder use of the system.
On the whole, especially under the reign of the witch-
scare, it continued to be practised in the most extreme

' Ck)mmentary on Augustine, De Civ. Dei, Book 19, ch. vi., quoted by
Grevius, 439-441.
- Grevius, 607.



INCREASE OF CRIME— CRIMINAL JUSTICE 191

manner in most parts of Germany. The Lutheran
theologian John Meyfart, born at Jena in 1590, a true
champion of the wretched victims of torture, said in his
' Christhche Erinnerung an gewaltigen Regenten,' that
in his youth he had seen the brutal way in which a
master torturer had burnt a poor person, hanging in her
martyrdom, in her secret parts with brimstone. ' Yea
verily,' he goes on, ' they often tortured the poor creatures
for twenty-foiu" hours running, and stretched them
so dreadfully twenty, thirty, forty, fifty times in
succession, that the sun shone through their bodies and
the intestines became visible. Meanwhile the judge and
other official persons would go off to eat and drink, and
even to play cards, leaving the victims alone to the tender
mercies of the brutal executioner, imtil he was informed
that they were ready to confess, or till they had died
under the torture." ^

' Oh thou heavenly Father,' exclaims Meyfart, ' what
must be the state of mind of the learned faculties, the
magistrates, the judges, who sit at home in comfortable
ease, eating and drinking to satiety, and in their studies
writing about torture, and pubhshing books, and
reading about torture in the criminal court proceedings
sent to them, while all the time they have not the
faintest image in their minds of all that goes on, and they
judge of the wretchedest wretchedness and the brutalcst
brutahty as bhnd people judge colours ? How must
the preachers, the teachers, the confessors be minded
who sit at home in comfortable ease, eating and
drinking and feasting, and in the seclusion of their
studies describe prisons and the pangs of torture,

' Wicderholdt, 69. Concerning Meyfart see Biirwinkel, Joh. Malth.
Meyfart, Erfurt, 1897. Sco alao Theol. Utadien unci Kritiken, 1900, p. 92 ll'i



i\)-2 UlSTOllV OF Till-: CJKll.MAX PEOPLE

put them into sermons, and from their pulpits excite the
rulers, blame conscientious functionaries, and clamour
for t he executioner, while all the time they have not even
a dim shadow of the truth in their thoughts, and describe
the most agonising agony and the crudest cruelty as
the bhnd describe colours ? If these pohtical and
ecclesiastical persons, who take such an interest in
tortm-e and martyring, were to hang just for one-quarter
of an hour in the place of torment, their books and
their sermons would spit forth curses and maledictions.
To them may be applied the words of the Prophet Amos,
chap. vi. : " they put far away the evil day, and cause
the seat of violence to come near ; . . . and are not
grieved for the affliction of Joseph." There is money
for the judges in the business, and for the preachers an
occasion to crow^ to their heart's content ; that is all
the good in it.' i

A hundred years after Vives a new opponent of torture
came forward, John Grevius (de Greve), Protestant
preacher in the Dutch locaHties of Heteren and Heusden.^
After the strict Calvinists had condemned the heresy
of Arminius at the Synod of Dordrecht, Grevius refused
to subscribe to the decrees on faith presented to him ;
he was therefore deposed from his office in 1618 and
banished from Holland. Nevertheless, he returned
there after a time and for several weeks held secret
services in Kampen. In 1620, while sojourning at
Emmerich, he was arrested in this httle town of the
Duchy of Cleves, taken to the Hague, and later on

1 Meyfart, 481^82.

- See van Slee in the Allgemeine deutsche Biographie, ix. 647 £f. Soldan-
Heppe, ii. 205 ff. Diefenbach, Hexenwahn, 160 ff. Concerning Grevius
see also Binz, Joh. Weyer, second edition, pp. 117-119.



INCREASE OF CRIME— CRIMINAL JUSTICE 193

to Amsterdam, and condemned to perpetual imprison-
ment. During his trial, which lasted about six weeks,
Grevius appears to have undergone torture. So at
least says James Frederick Ludovici, and Grevius
himself is undoubtedly alluding to his own experience
when he writes : ' I know some one who was tortured
by four sergeants, each of whom tried to outdo the
other ; besides the men who did the torturing, no other
mortal was present.' ^

For a year and a half Grevius was in prison at
Amsterdam with common criminals ; in the winter
he could not obtain oil, tapers, or any other means
of light.- At length, with a friend's help, he succeeded
in a bold plan of escape. Duke Frederick of Schleswig-
Holstein had offered the Dutch exile a place of refuge
in his lands, and thither Grevius now returned. On
August 12, 1624, he dedicated to this prince from
Hamburg his memorable pamphlet against torture,
the * Tribunal reformatum.' As the immediate cause
which drove him to write this treatise, Grevius mentions
the circumstance that during his imprisonment at
Amsterdam, theological books were only meted out
to him with the most scrupulous spareness. Conse-
quently he fell back on Roman law-books, studied
also several explanations of these, with all their instruc-
tions and rules about torture, and conceived such a
loathing for the system that he resolved to combat
it in a special pamphlet. This he composed while still
in his dungeon. Although Grevius had already in
his youth, and especially during his eighteen months'
imprisonment at Amsterdam, occupied himself with

' Grevius, Tribunal ref. Praef. nova, Bl. 6, S''', and 360.
- Grevius, Tribunal ref. Praef. aucloris, Bl. d. 7''.
VOL. XVI. O



194: HISTORY OF THE GERMAN PEOPLE

tlio sliuly ot law, ho nevertheless would not undertake
to iight the torture system from the standpoint of
positive law. ' I do not seek to penetrate into the
mazes of Roman law. In this work of mine I am
concerned with that kind of law which our own reason-
able nature teaches each one of us, which we call natural
law, and of which the Emperor Justinian says that
God's providence has, so to say, insured that it shall
always remain unshaken and unchangeable.' As a
theologian, Grevius says, he was quite specially fitted for
an inquiry as to whether torture was in accordance with
natural right. * Moreover,' he says in opposition to
the professional jurists, ' when a plague is raging, we
accept an effectual means of cure from anyone, whether
he bears the title of " doctor " or not.' ^

' Among Christians,' says Grevius, ' torture ought
no more to be tolerated than slavery, with which it is
connected in its origin. All said in favour of torture
is untenable. People appeal to custom. But this
custom is imreasonable. The Roman code of law is
appealed to. But this code also includes slavery.
The Romans revelled in gladiatorial fights, and many
people declared these to be good and useful, a Nero
and suchhke bloodhounds among others. A law which
directly contradicts natural law is no law at all. Reason
says that punishment should not be inflicted without
certainty of guilt ; but torture punishes a crime before
it has been proved. The conscience of the judge, they
say, requires the help of torture, when other evidence
does not satisfy him. But who compels him to punish,
if voluntary confession or evidence of guilt do not
afford proof enough? As little is torture needed to

^ Grevius, Tribunal ref. Praef. auctoris, BI. d. 3, c. 8.



INCREASE OF CRIME— CRIMINAL JUSTICE 195

keep up the dignity of the law-courts. Cruelty and
injustice confer no honour. Neither can it be said
that torture is necessary in order to deter the people
from secret crimes ; for that would be using a bad
means for a good end. Punishment can only be legiti-
mately inflicted on those whose misdeeds come to hght
without torture. Undue, excessive severity incites to
transgressions rather than deters from them, and tor-
ture, more than other penalties, suggests to tyrants
and revengeful men, the idea of accusing the innocent,
especially of lese-majeste.' ^ ' But,' Grevius frequently
hears said, ' the use of torture is so hedged round with
innumerable protective rules that innocence has no need
to tremble. Torture is reserved for gross crimes, for
cases where there is lack of other evidence, when there are
insufficient indications of guilt." - Grevius takes the
trouble to test these ' indications ' singly, and endeavours
to show from their nature, and also from numerous
examples, that even where strengthened by torture and
the confession of the ' victim ' they cannot be relied
on.3 Moreover, these limitations and modifications of
the law-books and instructors of law were not seldom
disregarded in actual judicial life. This leads to one of
the most interesting pages of this instructive book,
viz. the description of the evils and abuses attending
the administration of criminal justice either generally
or at any rate in many places.*- 'According to present-
day custom,' says Grevius, ' there are no prescribed
limits for the judges in condemning to torture. If they

' Grevius, Tribunal ref. 11-12, 24-27, 17-25, ix. 20-29, 40-41, 82-85,
93-103, 103-110, 121-133.

- L.C. 135-136. =* Ibid. 146-241.

* The pronouncement of sentences in civil law-suits was, to judge
from an utterance of Grevius (205), far more careful and just.

o 2



196 HISTORY OF THE GERMAN PEOPLE

like they can have you tortured a hundred times. When
once they have begun they generally go on till they
have wrung a confession out.^ For a weak and infirm
man there is then no hope. The judges set far too
much store on the statements which the accused persons,
either voluntarily or under torture, make concerning
their accomplices ; not seldom does fear, or desire
for revenge, or hope of their sentence being modified,
put hes into their mouth. Terrible is the desolation
caused by such depositions at the trials for witchcraft.
The facial expression also, the physiognomy of a man
is often taken by the judge as an index justifying the
recourse to torture. In mockery of justice, torture is
even inflicted for petty thieving. If there are many
persons to be tortured they begin with the feebler ones.
For crimes of a certain sort they consider themselves
entitled even to put children on the rack. Some of
the judges themselves help in the proceedings, devise
new forms of torture, seem as if they could not stare
enough at the butchery, have to be admonished by
the executioner that it is time to stop, drive people
to death with torture.' ^ ' When anyone has confessed
himself guilty under torture, and again after the lapse
of twenty hours since his removal from the place of
torture, still naturally under the influence of the pain
and the fear of torture, has confirmed his confession, the
judges instruct the notary to write down in the judicial
acts that the culprit confessed of his own free will ; no
mention is made of torture. They justify themselves on
the plea of universal custom.' ^ One thing was specially

> Grevius, Tribunal ref. 168-169.

- Ibid. 177-189, 230-235, 278-279, 282-283, 345, 421-424.

3 Ibid. 450-469.



INCREASE OF CRIME— CRIMINAL JUSTICE 197

to be deplored. As Grevius points out, the judges
could get strong support for much hardness and
injustice from celebrated teachers of law both in earlier
and modern times. Thus some of these showed a
judge who had condemned anyone to torture unjustly
the way in which he could save himself from punishment.
According to JuHus Clarus, the judges were not bound
to inform the person condemned to suffer torture
of the evidence brought up against him, nor to allow
him opportunity to defend himself, unless he had
himself asked for this. Others advised the judge not
to decree torture until the accused was actually in the
torture-chamber and on the point of being stretched on
the rack : for then his appeal was void in law. Baldus
opined that it was right to extort a confession from
persons already fully convicted, because that confession
deprived them of the right of appeal. ^

By the indication of aberrations and abnormities of
this sort, Grevius thought to have prepared the way
for a direct and uncompromising attack on torture as
such. ' The judicial procedure of the old covenant,
as God Himself ordained it, knows nothing of torture.
Torture is not in accordance with Christian love, which
rather seeks proofs of innocence than of guilt, and in
case of doubt gladly adopts the milder course. The
natural moral law forbids that any man should be
compelled to act traitor to himself. ^ The judges
themselves allow that so long as the guilt is uncertain,
punishment must not be inflicted. Hence it follows that
torture ought not to be inflicted, for let them call
it what they will, it is, as a matter of fact, punishment,

' L.c. 258-259, 26G sqq., 271.

2 Grevius, l.c. 287-290, 297-301, 301-309.



198 HISTORY OF THE GERMAN PEOPLE

and punishment as hard and heavy as any other,
often, indeed, more terrible than execution itself. ^
Then there are to be considered the evil consequences
which naturally follow on torture. As the slightest
suspicion of guilt may lead to its appUcation, any ill-
disposed man, even the criminal himself, can cause
it to be inflicted on the innocent. Torture is a welcome
tool in the hands of biased judges, ambitious tyrants,
embittered politicians.^ Its horrible cruelty drives many
to suicide.'

Such cruelty, Grevius tells the princes at the end
of his pamphlet, ought no longer to be tolerated by
them ; ^ he implores them to banish torture from their
law-books and their halls of justice. Frequently and
beseechingly he urges humanity on the judges, com-
mends to their mercy the poor and the common people,
shows how there should be no difference between the
official and the Christian, and how unspeakably better
it is in doubtful cases to let go a guilty person than to
condemn an innocent one.^

Grevius speaks with abhorrence of the clergy who
procure access to the chambers of torture and, either
openly or hidden behind a curtain, entertain themselves
with the sight of misery. Like good Samaritans, he
says, ' the preachers ought to visit the prisons, take alms,
consolation and aid to the prisoners, help the innocent
to justify themselves, and earnestly and without inter-
mission admonish the officials to justice and Christian
mercy.' ■'' Further, Grevius insists that every sentence
of death should be signed by the prince himself.^ It

» L.c. 299-300, discussed in detail at 78-81, 139-140, 252-253.
' Ibid. 325-329. =* Rid. 509-511.

4 Ibid. 88-92, 107-108, 220-221, 512-515. ' Ibid. 492-498.

« Ibid. 74.



INCREASE OF CRIME— CRIMINAL JUSTICE 199

grieves him when he sees the populace flocking to the
doors and windows of the hall of justice in order to hear
the cries of agony of the tortured people. He would
Hke to see the corpses of those who had been hanged or
otherwise executed decently buried ; exposing them to
view did not frighten and warn off the populace, but
only increased its savageness and cruelty. ^

The voice of reason, which spoke here to the heads
and hearts of contemporaries, somided in vain. More
than 100 years after Grevius wrote his pamphlet,
a later pubhsher of it said that torture was still in use
and that he dared not hope that the publication of the
work would procure its abolition. ^ Then, as before, the
most learned of the jurists endeavoured to support the
prevalent barbarity with their great erudition.

Uncommonly significant in this respect is the ' Neue
sachsische Kriminalpraktik ' of Benedict Carpzov (1595-
1666), a man of strict Lutheran opinions, who had read
the Bible through fifty-three times and who went every
month to the Lord's Supper. This writer attributes the
great variety of modes of torture to the continuous
increase of crime. He mentions the names of sixteen
different kinds of torture, but adds that there were ' a
hundred others,' which he advises the judges to avoid
and to abide by those in common use.

As in use in the Electorate of Saxony, Carpzov
mentions cording the hands, thumbscrews and leg-
screws, stretching on a ladder, and scorching. When the
mere threat and sight of the instruments of torture were

' Lx. 484-492.

- ' Verum non ideo opusculum rccudcndum esse ccnsui, ut crcderem
Bic profligari posse c foris Christianorum torturae usum. Niniis quippe
inveteratus est.' Preface of J. G. Pcrtsch, of the year 1737.



200 HISTORY OF THE GERMAN PEOPLE

of no use, the officers must proceed step by step to the
application of the same. ' The first degree consists in
twisting cords round hands and fingers until they cut
into the bone. This causes intolerable pain, so that this
stage, as regards anguish and suffering, is not unhke the
second. For the executioners say, " if the dehnquent
survives this cording, he can also easily stand the pains of
severer torture." The second and harder degree consists
in stretching the patient on the rack until all his limbs
are torn and dislocated. This is the most usual kind
of torture and is what is meant when one speaks simply
of " torture." The third and highest stage is that the
executioner, after stretching the victim on the rack,
inflicts still worse martyrdom and scorches his skin with
burning splints or with fire and brimstone, or pokes
spikes of fir-wood under his nails, and then sets fixe to
them. Or else the victim is laid on a metal bull or
donkey, heated inside with fire till it is red-hot. These
and other kinds of torture are left to the discretion of the
executioners. But as this third stage is the most terrible
it is only resorted to in very horrible and quite out-of-
the-way cases of criminality when the evidence is clear
and convincing.'

After an admonition to the judges not to proceed
without rule or discrimination in the use of torture,
Carpzov says that very many judges unfortunately fail
in this respect. * For uneducated, drunken judges, who
are not worthy of the name, tear and mangle the un-
happy victims with torments beyond the power of
human patience to endure. Like wild animals, which
thirst for more and more blood when once they have
tasted it, these^men with'^gloating, devouring eyes will
often order the torture to be doubled.' ' In some places



INCREASE OF CRIME— CRIMINAL JUSTICE 201

the accused is stretched on the rack twenty, thirty, forty
or fifty times, until the sun shines through his body/ says
Ad. Keller. ' Many of the judges are not themselves
present during the process of torture, but spend the time
in eating and drinking and leave the victims either alone
or in the hands of the cruel, clumsy attendants. But
many of them lend a helping hand. Thus de Puteo
tells how he once saw an official seize the accused person
by the hair and bang his head against a pillar, saying :
" confess and speak the truth, you villain \" ' ^

Persons threatened with torture often preferred to
be executed without further ado, although in that
savage age death-sentences were executed with the
utmost cruelty.

A foretaste of the torments awaiting them was
generally obtained by the condemned persons while
in prison. Prison rules in the Middle Ages proper
were to a great extent very objectionable. At the same
time much was done to alleviate the hardships of the
poor prisoners. They were generally allowed to pro-
cure their own food, and reports also tell of funds and
endowments by which prisoners without means were
enabled to get better food. Most of them also were
allowed the privilege of being visited by their relations
and friends. 2 In the sixteenth and seventeenth centuries,
however, there was no longer any question of such
alleviations. ' Nowadays,' wrote John Grevius in 1624,
' this is the rule in most tribunals : the instant anyone
is placed in a prison-cell, be the cause of imprisonment

' Pract. nova crim. pars 3, q. 117, n. 37 sq., 40, 41, 45-57, 02, G3 ; q. 124,
n. 22. For Carpzov's views on the punishment of heretics see present work,
vol. X. 226, n. 2.

- Kricgk, ii. 48 ff., who also speaks of other alleviations of prison life in
the Middle Ages.



202 HISTORY OF THE GERMAN PEOPLE

wliat it may, there is an end of all help, all consolation,
yea, all hope for the unhappy victim. Ruthlessly the
judges cut off from the poor wretch all communication
with the outer world, all power of procuring the necessary
means for defence and consolation, and so from the first
moment of imprisonment the prisoner feels completely
lost/ ' According to the evidence of Scripture," Grevius
further remarks, ' the Apostle Paul, when accused of a
heavy offence, was allowed visits from his friends, and
even Herod did not forbid John the Baptist during his
imprisonment to be ministered to by his disciples. Now,
however, nobody is allowed to go near the prisoners.' ^

The same witness gives the following account of the
condition of prisons : ' The prisons nowadays are every-
where dank and dirty ; they are generally underground
and resemble malodorous swamps or gruesome pits.
Sometimes they are above ground, and then they are
hke iron cages, not meant for human beings but for
tigers or terrible monsters.' ^

That Grevius did not exaggerate is shown by the
accounts of other contemporaries. The dungeons in
which in the seventies of the sixteenth century the Saxon
crypto-calvinists were shut up correspond throughout
to the description by Grevius. Every means of writing
was withdrawn from these prisoners, no book, not even
the Bible, was allowed them.'^ If we possessed nothing
more than the descriptions of the Westphalian Anton
Praetorius, we should have adequate knowledge of the
criminal justice of that period. This writer gives the
following account, as eye-witness, in a pamphlet first
pubhshed in 1602, of the prisons of that time : ' Prisons

' Grevius, Tribunal ref. Praef. auctoris, Bl. d. 4''-d. 5^.

- Lx. BI. d. 4''. ^ See present work, vol. viii. 194 ff.



INCREASE OF CRIME— CRIMINAL JUSTICE 203

are generally made in thick towers, gateways, block-
houses, vaults, cellars, or other deep pits. Placed in
them are often seen large thick wooden boards, two or
three laid edgewise one over the other and movable
in a framework ; through these boards are made holes
in which arms and legs can he. The criminal is seated
on a block of wood, a stone, or on the ground : his
hands and feet are pulled through the holes, and the
boards so adjusted in the framework that all movement
becomes impossible to the prisoner. In others there
are large iron or wooden crosses to which the prisoners
are chained by the neck, waist, arms, and legs, so that
they must always either stand, he, or hang according
to the position of the cross. In others there are strong
iron stakes, five, six, or seven quarters of an ell long,
with iron bands at the ends, in which the prisoners'



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