Bayle and Montaigne on torture

Detail of a memorial stone on the remains

of the gallows of Amerongen, Netherlands.

When Bayle wrote his treatise on tolerance, he seldom referred to other thinkers who had influenced him or whose ideas he used in order to substantiate his stand. However, there is one striking exception: Montaigne. After having read my last blog, I think you’ll not be surprised that Bayle fully rejected a practice that was common and also legal in his days and that was often used in juridical fact-finding examinations: torture. Torture was also used when (religious) authorities like the inquisition wanted to convert or punish heretics. Although generally Bayle is quite comprehensive in his argumentation, not so when he rejects torture. He simply says that torture often makes that accused confess crimes that they haven’t committed, and then he goes on: “Montaigne writes about this very wise: ….”, followed by a long quotation after the colon. Since torture is still practised, legally and illegally, I think that here, too, it is worthwhile to quote Montaigne in full as well:
“The putting men to the rack is a dangerous invention, and seems to be rather a trial of patience than of truth. Both he who has the fortitude to endure it conceals the truth, and he who has not: for why should pain sooner make me confess what really is, than force me to say what is not! And, on the contrary, if he who is not guilty of that whereof he is accused, has the courage to undergo those torments, why should not he who is guilty have the same, so fair a reward as life being in his prospect? … But when all is done, ’tis, in plain truth, a trial full of uncertainty and danger: what would not a man say, what would not a man do, to avoid so intolerable torments? ‘Pain will make even the innocent lie.’ Whence it comes to pass, that him whom the judge has racked that he may not die innocent, he makes him die both innocent and racked.” (Essays, Book II-5). And Bayle adds: “These are really the most terrible effects of the terrible pains that a man, whose limbs are violently stretched out, have to suffer.” (Tolerance II-2).
As said, in Montaigne’s days and a century later when Bayle lived, too, torture was an accepted practice in juridical examinations and also as a means of punishment. Then it was often executed in public. Since torturing is illegal nowadays, so hidden, in most countries, it is difficult for modern man to imagine how cruel it was. You can get an impression by visiting a torture museum or by googling a bit on the internet and looking for torture instruments. It’s unbelievable what kinds of cruel instruments man has developed through the ages (and actually still develops).
Montaigne was nearer to the execution of torture than Bayle. While Bayle was “not more than” a philosopher, for many years Montaigne has worked as a counsellor of the courts (“Parlements”) of Périgueux and Bordeaux. However, he was neither directly involved in this practice, nor has he ordered to torture someone. Montaigne was a kind of examining magistrate and his job was collecting information and evidence for lawsuits. He didn’t pass judgements himself. By the way, Montaigne was not against the death penalty (nor was Bayle), but then he wanted a short and simply execution.
In the essay just quoted (titled “Of conscience”) Montaigne didn’t only demonstrate that torture is pointless and senseless, in an example he also showed that it can be unjust:
“A country-woman, to a general of a very severe discipline, accused one of his soldiers that he had taken from her children the little soup meat she had left to nourish them withal, the army having consumed all the rest; but of this proof there was none. The general, after having cautioned the woman to take good heed to what she said, for that she would make herself guilty of a false accusation if she told a lie, and she persisting, he presently caused the soldier’s belly to be ripped up to clear the truth of the fact, and the woman was found to be right. An instructive sentence.”
But what if the country-woman did have lied and the soldier was innocent? It makes me think of another practice that was also not unusual in Montaigne’s time: Women accused of being witches were thrown in a lake. If she remained afloat, she was a witch, and was hanged as yet; if she sank, she was innocent. Too bad that she didn’t survive the test.
From the end of the 18th century on the legal practice of torturing almost disappeared. Also the number of offences punishable by death diminished a lot. While before a simple theft could be punished with the death, since then in most countries the death penalty can be imposed only yet for murder or for serious violation of the public order. In many countries, especially in Europe, torture and death penalty have become illegal, anyway. Nevertheless, illegal torture and illegal death penalties are still widely practised. The recent attempt to murder the Russian opposition leader Alexei Navalny is an example of a failed illegal execution. Or think of Belarus, where arrested demonstrators have been tortured simply because they were protesting against the illegal re-election of “their” president.
I think that everybody will agree that torture is cruel, for otherwise it would not be practised. It is practised just because it is cruel and people cannot withstand the suffering. However, just because of this – to quote Montaigne again –, “[a] thousand and a thousand have charged their own heads by false confessions … Are not you [then] unjust, that, not to kill him without cause, do worse than kill him?” But is not the cruelty already reason enough to stop the practice? 

Sources
- Montaigne’s Essays quoted from https://oll.libertyfund.org/title/hazlett-essays-of-montaigne-vol-4#lf0963-04_head_006
- Pierre Bayle: See blog last week.