by Scott in "Old Mortality," when the poor preacher's limbs were
mangled, I think we should have heard more of it. Nor was the torture
always applied, but only when the expected evidence was not otherwise
forth-coming. Cicero explains, in the little dialogue given below, how
the thing was carried on.[68] "You had better tell the truth now, my
friend: Was it so and so?" The slave knows that, if he says it was so,
there is the cross for him, or the "little horse;" but that, if he
will say the contrary, he will save his joints from racking. And yet
the evidence went for what it was worth.

In this case of Roscius there had certainly been two slaves present;
but Cicero, who, as counsel for the defence, could call no witnesses,
had not the power to bring them into court; nor could slaves have been
made to give evidence against their masters. These slaves, who
had belonged to the murdered man, were now the property either of
Chrysogonus or of the two Tituses. There was no getting at their
evidence but by permission of their masters, and this was withheld.
Cicero demands that they shall be produced, knowing that the demand
will have no effect. "The man here," he says, pointing to the accused,
"asks for it, prays for it. What will you do in this case? Why do you
refuse?"[69]

By this time the reader is brought to feel that the accused person
cannot possibly have been guilty; and if the reader, how much more the
hearer? Then Cicero goes on to show who in truth were guilty. "Doubt
now if you can, judges, by whom Roscius was killed: whether by him
who, by his father's death, is plunged into poverty and trouble--who
is forbidden even to investigate the truth--or by those who are afraid
of real evidence, who themselves possess the plunder, who live in the
midst of murder, and on the proceeds of murder."[70]