Torture and the Law of Proof

Chapter titles and excerpts from the book titled "Torture and the Law of Proof Europe and England in the Ancien régime" by John H Langbein 1977 ISBN: 0226468062 : 9780226468068 | OCLC: 2695110

Preface ix
Part 1 Europe Judicial Torture

1
Torture and the Law of Proof

"When the Fourth Lateran Council of 1215 abolished the ordeal, it destroyed an entire system of proof. [Carolina Articles 56, 54], The ordeals were means of provoking the judgment of God. _{[page 6]}

"Because torture tests an accused's capacity to endure pain, not his veracity, innocent person might yield to the pain and torment and confess things they never did." Joost Damhouder ~ 1564 _{[page 9]}

The Jurisprudence of Torture
The Origins of Judicial Torture
The Classical Critique of Judicial Torture
Abolition and the Fairy Tail

Note 1. The Law of Torture,

"Never on Sunday or Holy Days." _{[page 13]}

Threaten first, suggestive questioning, verification, repetition of torture. _{[page 15]}

Note 2. Torturing the Convicted

2 The Transformation of Criminal Sanctions

The Blood Sanctions
Medieval Imprisonment
The Galley Sentence
The Workhouse
Imprisonment
Transportation
Europe and England

3 The Revolution in the Law of Proof

Peona Extraordinaria
Punishment without Full Proof
Carolina to Theresiana
The new Law of Proof in France
Why Poena extraordinaria?

4 The Abolition of Judicial Torture

The Abolition Legislation
The Abolition Legend

Part 2 England The Century of Torture 1540-1640

5
The Torture-Free Law of Proof

"What the English did not do was to regularize the use of torture in their criminal procedure." [_{page 73}]

Peine Forte et Dure
The Jury Standard of Proof
Public Prosecution under the Tudors

6 The Torture Warrants 1540-1640

The Gerard Warrant
Venue
Modes of Torture
Commissioners to Torture

The Purposes of Torture

"In the highest cases of treasons, torture is used for discovery, and not for evidence" - Bacon _{[page 90]}

The Table of Warrants

"The priest George Beesley and his companion (Case 55, 1591) were ordered confined in the Tower to the "prison called Little Ease," a cell so cramped that the inhabitant could neither move nor stand in it.

7 The Theory of Torture

In the "Third Institute," Coke writes that "there is no law to warrant tortures in this land, nor can they be justified by any prescription" _{[page 129]}

The Prerogative

"Jardin inferred that the power to torture was regarded as part of the royal prerogative ...inflicting torture at pleasure at the mere instance of the Crown, has always appeared to me to be a very remarkable instance of the opposition of a prerogative to law-of the existence in former times of a power above the law, controlling and subverting the law, and thus rendering it practical application altogether inconsistent with its theoretical excellence. {Jardine 68} _{[page 129]}

The Reception?
The End of Torture
Abbreviations
Notes

_[page147] Note # 12. An overtone of the supernatural survived in the law of torture in the jurists' occasional suggestion of " divine intervention: God will give the innocent the strength to resist pain."

_{[page 149]} Note # 30. "There are few if any cases in which a man can be put to the torture under Roman law, upon less evidence than would be sufficient to convict him by the English." W. L. & P.E. Twining, "Bentham on Torture," Northern Ireland Legal Quarterly 24:305, 333 (1973).

_{[page 150]} Note # 40. "Less [evidence] is needed to employ torture against a vagabond than to employ it against a domiciliary...." Robert J. Pothier, Traité de la procédure criminelle, in Oeuvres de Pothier (Bugnet, ed.) (Paris, 1848 ed.) X:474 (V.III.144.3); cf.

_{[page 156]} Note # 49. "....'proceeding to punish vagabonds,' says Damhouder, ch. 151, at 204^v., are 'summary and without formal judgement...Vagabonds were considered as outsiders, and the community that felt threatened by vagabonds saw little reason to extend to them safeguards of the regular criminal law, which were meant for citizens."

Index