Rare Enlightenment treatise on judicial torture. In sheets as issued.

Published on the eve of abolition of judicial torture
 
Gerstlacher, Carl Friedrich. Caroli Friderici Gerstlacheri Commentatio per quaestione per tormenta. Frankfurt and Leipzig, Eberhard Klett, 1753. 4to. [22.9 x 18.8 cm], (2) ff., 86 pp., (1) f. errata. With woodcut vignettes, headpiece and tailpiece. In folded sheets as issued (unopened and without sewing holes). Title page spotted, occasional spotting, edge wear, toning and dustiness and elsewhere, folds in the preliminary leaves tender and with a few holes.
 
Rare first and only edition of this important Enlightenment work concerning the legality of judicial torture, here in an example preserved as folded sheets, unopened and unsewn as issued. The Commentatio per quaestione per tormenta is the first publication by Carl Friedrich Gerstlacher (1732-95), who would later author some two dozen works during his influential career as a jurist (see Meusel, pp. 136-40). 
 
Gerstlacher was no radical on the matter of judicial torture, but his Commentatio provided a detailed, fastidious record of the legal questions involved, ranging from antiquity to the ancien régime, thus allowing for others to focus their criticisms on both the barbarity and inefficacy of the practice, most famously Cesare Beccaria (1738-94) in his Dei delitti e delle pene (1764), which hastened the statutory abolition of torture across Europe from the 1760s through the 1820s. There would, of course, be no end to the legal gymnastics used to justify judicial torture in subsequent years, but Gerstlacher’s work showed that it was a practice with a history which could be altered, not an immutable social condition.
 
“The Romans used a number of terms to describe what we, somewhat indiscriminately, call torture. The investigative criminal procedure was called quaestio, which referred to the court itself. Tormentum originally referred to a form of punishment, including the aggravated death penalty, to which, under the Republic, only slaves were subjected, although later freemen were liable to it for certain crimes. When tormentum was applied in an interrogatory way, the technical term was quaestio per tormenta, or quaestio tormentorum, that is an investigation by means that had originally been strictly a form of punishment, and that of slaves only” (Peters, p. 28). Gerstlacher recounts this legal history after first investigating the terminology of judicial torture in ancient Greece, Rome, medieval Germany and France, and describing its extent and procedures. He discusses the waxing and waning of the judicial torture, which in the Middle Ages gave way to oaths and physical trials before God, only to return after prolix scholastic arguments made convictions very difficult to attain, thus putting increasing pressure on officials to attain confessions (‘the queen of proofs’) by any means necessary. He discusses inquisitorial procedures in early modern Europe and responds to longstanding criticisms about the unreliability of torture in extracting credible confessions (e.g., hardy people tolerate the practice and persist in their denials, weak people crumble and falsely confess, and everyone is liable to incorrectly implicate others). The relevant statutes are everywhere carefully cited. 
 
Of bibliographical interest is the woodcut device on the title page that depicts a printing press with the motto “Cum ubertate vulgo” (“I publish abundantly”). 
 
The title of the work includes the term “pars prior,” which typically would suggest that it is part one of two, but here the term is better translated as “preliminaries”; no second part or sequel was intended or ever appeared. 
 
OCLC locates 2 US examples of this works, those at Cornell and Penn.
 
*Johann Georg Meusel, Lexikon der vom Jahr 1750 bis 1800 verstorbenen teutschen Schriftsteller, vol. 4, pp. 136-40; Edward Peters, Torture (1999).