colossus of theology and ecclesiastical law, Benedict Carpzov: the man who boasted that he had read the Bible through fifty-three times; that he took the Holy Communion at least once a month; that he had sentenced, or caused to be sentenced to death over twenty thousand persons; that he had devoted his life to strengthening the foundations of witchcraft procedure, and to increasing the severity of torture. In the older church, at the head of Thomasius's innumerable adversaries, as regarded theory, sat a multitude of the most eminent theological writers; and, as regarded practice, such prelates as the Archbishop of Salzburg, and the Bishops of Würzburg and Bamberg, who quietly ignored all argument, and went on torturing and burning as of old. But the work of so many heroic champions and martyrs, now crowned by the efforts of Thomasius, began to bear abundant fruit. When the Archbishop of Salzburg sent at one time to the stake ninetyseven persons, mainly for witchcraft, he ended the series of greater burnings; when the Bishop of Würzburg brought Maria Renata to the scaffold and stake in 1749, he ended judicial executions for witchcraft in Germany; and when Anna Göldi was executed at Glarus, Switzerland, in 1782, the whole series was ended in civilized Europe.

But, perhaps, even greater were Thomasius's services in another field. Closely allied with the witchcraft superstition was the system of Procedure by Torture then prevalent throughout the Continent. The connection between torture and witchcraft was logical. In England, where torture was rarely used, witchcraft never produced any such long series of judicial murders as on the Continent; but in Scotland and Continental Europe, wherever torture was applied it came to be an axiom that a person charged with witchcraft who once entered the torture chamber was lost.1

1 For a most masterly essay, by a great jurist, on the connection between wholesale witchcraft convictions and procedure by torture, see Wächter, Beiträge zur Geschichte des Strafrechts, especially in the appendices.

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The system of procedure by torture in securing testimony regarding crime had lingered along with more or less vitality ever since the days of the Roman Republic. One of the strongest arguments against it had been made by Cicero, though it is only fair to state that, on another occasion, Cicero, after the fashion of men like him, argued on the other side. In the later days of the Roman Empire, largely under the influence of the Stoics, it had nearly died out. Successive Pagan emperors had ameliorated it; had, indeed, abolished its worst features, and its destruction seemed certain. The barbarians of Europe, with few exceptions, disclaimed it in their codes; from the Vehmgericht it was absolutely excluded.

The Christian Church, too, in its days of comparative weakness, seemed to pronounce against it. In the fifth century St. Augustine, in the sixth St. Gregory, and in the ninth Pope Nicholas I, were among great church leaders who denounced it, and during the early Middle Ages it fell comparatively into abeyance.

But the great misfortune was that the Church, after arriving at power, abjured the mild policy which it had supported during its weakness, gave torture new vitality, found cogent reasons for it, and introduced it in a far more cruel form and to a far greater extent than had ever before been known under Greeks, Romans, or barbarians.

For, under the Greeks and Romans, and in the ancient world generally, the cruelties of torture were limited. It was from this fact, indeed, that Cicero drew one of his strongest arguments, namely, that a criminal, if robust, could resist torture and avoid confession, but that an innocent man, if physically weak, might be forced to confess crimes which he had never committed.

But in the Christian Church, during the Middle Ages, there was developed the theory of "excepted cases." Under the belief that heresy and witchcraft were crimes especially favored by Satan, and that Satan would help his own, the old Roman

procedure by torture was not only revived, but at last made unlimited. It was held that no torture could be too severe in suppressing these crimes. Every plea against the most extreme torture was met by the argument that Satan would of course strengthen heretics and witches to resist ordinary torture. The restraints of the earlier Pagan civilization were therefore cast aside. In trials for heresy and witchcraft there was absolutely no limit to torture. This new evolution of cruelty received the highest infallible sanction when in 1252 Innocent IV issued his directions to the Inquisition in Tuscany and Lombardy that confession should be extorted from heretics by torture, and this sacred precedent was followed for centuries by new and even more cruel decrees of Popes, Councils, and Bishops, regarding procedure against both heretics and witches throughout Europe.

This procedure by torture naturally passed into the courts under lay control, and all the more so because ecclesiastics had so much to do with the administration of justice in them: a method which was considered reasonable in one court seemed reasonable in another.

land remained comparatively free from it, the main exceptions to the milder English practice, strange to say, having occurred under Lord Coke and Lord Bacon.

Strong thinkers, indeed, arose from first to last against it. But when such philosophers as Montaigne and Bayle and Voltaire, and such jurists as Pussort and Sonnenfels and Beccaria, would have abolished torture, the whole church influence, as well as the vast conservative authority in the legal profession, was against such an innovation, and this procedure steadily maintained its hold upon the world.1

It was widely argued that, since the Almighty punishes the greater part of mankind with tortures infinite in severity and eternal in duration, men might imitate the divine example by administering tortures, which at the worst can only be feeble and brief, as compared with the divine pattern. It was also held, as a purely practical view, by the great body of the ecclesiastics and lay lawyers that torture was the only effective method of eliciting testimony. Among the monuments of this vast superstition which exist to this day, the traveler sees the "witch towers," the torture chambers, and the collections of instruments of torture in various towns on the Continent: notably at Nuremberg, Ratisbon, Munich, and The Hague; but perhaps nothing brings the system more vividly before us than the executioner's tariffs still preserved. Four of these may be seen in the library of Cornell University, and, among them, especially that issued by the Archbishop Elector of Co

1 For a general statement of the history and development of torture, especially on the Continent, see Wächter, Beiträge zur Geschichte des Römischen Strafrechts, as already cited. For an excellent statement of its general development, see Lea, Superstition and Force, edition of 1892, pp. 477, 478, also 575, 576. For a special history of procedure by torture in Great Britain, see Pike, History of Crime in England, chap. 10, and for means of tracing out the historical development of English and Scotch ideas regarding it, see Howell, Index of the State Trials, under the word “Torture.”

and so on through fifty-five items and specifications.

On this whole system, also, thus widespread, thus entrenched, thus defended, Thomasius declared war. He carried on the contest with his usual earnestness; yet at one time he faltered. The weight of authority against him seems to have aroused his suspicion that he might, after all, be wrong. In his justification it should be noted that many of his friends who were inclined to adopt his other ideas could not see any efficient means of eliciting true testimony save by the rack. Even

at the beginning of the nineteenth century, one of his greatest admirers, his biographer, Luden, while praising all his other work, expressed grave doubts as to the wisdom of his opposition to torture.1

But Thomasius brought to bear on this subject his old strength and keenness; his doubts gradually faded; his convictions grew firm. His enemies kept him well occupied. The disciples of Carpzov were active in showing the godless and atheistic character of Thomasius's views upon torture, as well as upon witchcraft, and even Leibnitz - in many ways the greatest thinker of his time- sided mildly against him.

But Thomasius pressed on, and was at last victorious. The sovereigns of Prussia and of other German states gradually, under the influence of the new thought, allowed torture to fall into disuse. There were some rare exceptions, but at the close of Frederick the Great's reign it had virtually ended.'

The influence of Thomasius soon spread throughout other parts of Europe. Though torture lingered in France, and was only fully swept from the statute books by the Revolution of 1789, and though it prevailed in various other parts of Continental Europe until even a later period, it had mainly vanished before the end of the eighteenth century, under the antagonism of Thomasius in Germany, Voltaire in France, and Beccaria in Italy.

In still another great struggle Thomasius did heroic work. While in the thick of this war against witchcraft and torture, he fought no less bravely against intolerance.

Very early in his career he laid down

1 For the letter in which Thomasius expressed his doubts, see Biedermann, as above. 2 As a curious and painful monument of the occasional use of torture in Prussia, even at a late period, see, in the Cornell University library, the contemporary account of the trial and punishment of sundry servants who robbed the royal palace at Berlin. It contains illustrations representing various administrations of torture. See, also, in the same library the trial of the "Anointers" at Milan, - the Processo dei Untori, with even more fearful illustrations.

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certain fundamental ideas on the subject, and these frequently reappear in his writings. He declared against all state interference with religious convictions; he formulated the theory that human law deals with men's wills, and not with their consciences; and from these germs there bloomed forth essays, dialogues, satires, every form of attack upon every form of intolerance, culminating in 1722 in his History of the Struggle between the Empire and Church in the Middle Ages. From the first word of this book he goes straight to the mark. He points out errors of the Fathers of the Church, displays the futility of persecution, and makes clear the necessity of proclaiming religious liberty. All this gave great offense, and especially were his enemies shocked by one pungent expression: "The duty of Princes is not to save souls, but to preserve peace." This was denounced as rank heresy, and even as blasphemy. The idea of toleration had hardly begun to dawn. Persecution had, indeed, been discouraged in the early Church, but, as a rule, only while the Church was herself persecuted. The one good example in this respect was set by Lactantius,

but it

had no appreciable effect on the Church at large. When she became able to persecute, she changed her view. Nothing could be more tolerant than the pleas made against persecution by Tertullian and Hilary of Poictiers when the Church was weak; nothing more provocative to cruelty than the arguments for persecution by Eusebius, St. Augustine, and the great mass of other leaders, when the Church had become strong. The same must be said of Protestantism. In its period of weakness it was tolerant; in its period of power it was intolerant.1 When at last toleration was forced upon Europe as a result of the terrible religious wars of Germany, it was in a form which to us now seems incredible. The religious peace of Passau in 1552 established a toleration 1 On this whole subject, see the admirable chapter on Persecution in vol. ii of Lecky's History of Rationalism in Europe.

expressed in the maxim, - "To whom the territory belongs, the religion belongs:" Cujus est regio ejus est religio. Toleration virtually extended only to allowing subjects who dissented from the religious ideas of their ruler to emigrate from his dominions. Even into minds blessed with the largest and most liberal instincts, minds like those of Luther and Melanchthon,-no full ideas of toleration, much less of religious liberty, had really entered. But Thomasius followed out his principle logically. He stood not merely for toleration, but for religious liberty. Whoever was oppressed for conscience' sake found in him a defender. Spener and his disciples were glad to avail themselves of his aid against oppression, and he stood by them firmly, receiving more than his share of the epithets hurled at them; and it should also be said to his honor that when the followers of Spener, at last, in their turn, became powerful, and therefore intolerant, he left them for

ever.

All along in Thomasius's career we see him putting forth ideas of vast use to the world: germ ideas, some of which have been obliged to wait for centuries before coming to full bloom and fruitage in institutions and laws. He did not hesitate to declare in Germany - groaning under Princes by the grace of God - that men were created naturally equal. He asserted the rights of women to a higher education and to the individual possession of property. His impartiality was judicial, and to the last he continued his various methods of work. In 1720-21 he published a book of Thoughts and Reminiscences of his legal life, an admirable mixture of statements profound and comical, grave and gay; but all pervaded with love of truth and hatred of tyranny.

His old enemies remained bitter; but a new generation was coming on, and the strongest men in it were his friends. Supporters came when least expected. The University of Leipsic, from which he had been forced to flee by night to save his life, finally made amends by calling him to

one of its most honored professorships. This he declined, and was soon afterward made Director of the University of Halle, and first Professor of Jurisprudence. His work ended only with his life. His manner of attack in his later years became less unsparing than in his youth; but what he lost in vigor he gained in authority.

As we look back over his life, so full of blessings to mankind, we can now see clearly one result of his activity to which no reference has hitherto been made, yet which was in some respects the most permanent of all; a result so fruitful that it has acted and is still acting powerfully in our own time, and above all in France, Great Britain, and the United States.

This was his general influence on the higher education in favor of freedom from sectarian interference or control. Down to the time of his work at Halle, German universities had been mainly sectarian, and their sectarian character, whether frankly brutal and tyrannical, or exercised deftly and through intrigue, held back science and better modes of thought during many generations.

Theology, as the so-called "queen of the sciences," insisted on shaping all teaching in the alleged interest of "saving souls." Innumerable examples of this in the dealings of the older universities might be cited. But Thomasius's work at the University of Halle began the end of it. By him, more than by any other, was that institution brought out of the old sectarian system. In the environment of right reason which he there promoted, and which was spread throughout his fatherland, was evolved that freedom of research and instruction which has made the German universities the foremost in the world, and has given to Germany a main source of strength, and not less in theology than in other fields.

His effort against witchcraft, torture, persecution, and various cruelties and pedantries, was triumphant long ago, but his work against sectarian control of instruction still continues, and nowhere more steadily than in the United States.

Evidences of it in Great Britain are the liberalizing of her great universities, and the election of laymen to so many positions in the higher instruction to which only ecclesiastics were formerly eligible. Evidences of it in France are the successful efforts now making to wrest the control of primary education from various monkish orders. In our own country it is seen in the escape of various older universities from sectarian control, and in the establishment of new universities, especially in our Western states, freed from this incubus,—and all, whether East or West, more and more under management of laymen rather than of ecclesiastics. The clauses in various state constitutions, notably that recently inserted in the constitution of the state of New York, forbidding appropriations to institutions under sectarian management, testify to the continuance of this movement. Sectarian hostility is, indeed, still strong in some parts of our country. It keeps back somewhat the proper development of the state universities of the North, and thus far absolutely prevents proper legislative appropriations to the state universities of the South. It has also been a main source of opposition to the establishment of a university at the city of Washington, which, though proposed by Washington himself, and supported by nearly every president since his time, still remains in abeyance. But the ideas of Thomasius will yet bear fruits in these fields as in others.1

His death came in 1728. He had looked forward to it without fear. All that the Church, with the dogmas then in vogue, could do to increase the terrors of death failed to daunt him. Striking was his selection of a text for his own funeral sermon. It began with the words of St. Paul before Felix: "Neither can they prove whereof they now accuse me; but this I confess unto thee, that after the way

1 For a brief but excellent treatment of Thomasius's work in emancipating the higher instruction in the German universities generally from ecclesiasticism and theology, see Dernburg, pp. 16 et seq.