Torture

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TORTURE

TORTURE. Torture (in Latin: quaestio; in German: peinliche Frage, Folter, or Marter; in French: la question, gehene, gene ) was an integral part of medieval and early modern criminal procedure. Because a voluminous body of law covered every stage of torture, the system is called judicial torture. During the early modern period torture gradually lost its importance, and it was finally abolished at the end of the period.

THE BACKGROUND OF JUDICIAL TORTURE

Judicial torture was no medieval or early modern invention. The Roman third-century lawyer Ulpian defined torture as "the torment and suffering of the body in order to elicit the truth." The actual jurisprudence of torture, however, only developed in connection with the twelfth-century "legal revolution," as the revival of Roman law at the newly founded universities of Northern Italy is often called. Before this, crimes were mostly prosecuted privately, with no public officials taking an active role in criminal investigations. The predominance of private prosecution came under threat as popes, kings, and princes increasingly centralized their political authority in the twelfth century. The process began in Northern Italy in the twelfth century and gradually spread to most other parts of Europe in the remaining centuries of the Middle Ages.

The inquisitorial procedure (inquisitio), as against the older accusatorial procedure (accusatio), was introduced to papal legislation as a means of controlling errant churchmen in the late twelfth century. In the inquisitorial procedure, the initiation of an action was entrusted to the court official, and the judge was actively involved in the investigation of the case. Inquisitorial procedure had been used in ancient Rome, and Charlemagne had also made use of it, but this type of procedure had fallen into disuse since the ninth century. In the thirteenth century, inquisitorial procedure was soon extended to the crime of heresy and other serious canon law crimes and soon spread to secular crimes as well. A parallel development (although not as yet thoroughly researched) was that serious crimes were categorized as exceptional (crimen exceptum), to which the normal rules of procedure did not apply.

The early medieval law of proof had left difficult cases to be decided by ordeal, oath, and judicial combat. Behind these archaic, "irrational" modes of proof lay the belief that God continuously intervened in the lives of the people and would let truth prevail in court as well. Leaving judicial problems for God to decide, however, ill suited the emerging conception of a rational, hierarchically organized judicial system. The result of the ordeal could not be challenged, nor could it be changed by the higher courts. The centralization of political power undermined the old European judicial systems, replacing lay judges with professional jurists. These professional judges were learned in Roman and canon law, distinct and alien from the system of proof based on ordeals, oaths, and combat. Many judges were probably familiar with formal logic and saw it as a basis for all legal decision making and law drafting. One of the most widespread forms of medieval legal scholarship became the so-called ordines iudiciarii, manuals of procedural law, in which both civil and criminal procedure, including the law of proof, were laid out in the minutest detail. The new procedure was based on learned law and written documents.

TORTURE AS PART OF THE STATUTORY THEORY OF PROOF

A new law of proof emerged, then, as part and parcel of these developments. The Roman canon law of proof drew its elements, like medieval Roman law in general, from the materials of Emperor Justinian's Corpus Juris Civilis (Corpus of Civil Law; also spelled Corpus Iuris Civilis), which had originated in the sixth century. In canon law, ordeals were expressly prohibited at the Fourth Lateran Council in 1215. The building blocks of Roman law were combined with those produced by the emerging canon law to build what has been called Romancanon law of proof, or the statutory or legal theory of proof. The theory then came to circulate as part of the European ius commune, ' common law', in the procedural law treatises of writers such as Albertus Gandinus (d. c. 1310) and William Durandus (c. 1237–1296). In contrast to the archaic system of oaths, ordeals, and combat, the new system assigned the decisions on evidence to human judges, not God, thus placing decisive emphasis on judicial torture. However, the change from one painful stage of criminal procedure to another—from ordeal to torture—may not have seemed as significant to ordinary people as it was to the theoretician.

Because the statutory theory of proof reached its maturity in the thirteenth century and remained virtually unchanged until the early modern period, it is convenient to describe the theory as it appears in sixteenth-century jurisprudence and legislation. Among the many influential writers on criminal evidence embracing the statutory theory were the Italian Prosperus Farinaccius (1544–1618), the Dutchman Joost van Damhouder (1507–1581), and the German Benedict Carpzov (1595–1666). All these writers further elaborated and refined the theory of torture. The last important doctrinal defense of judicial torture was written by a Frenchman, Pierre François Muyart de Vouglans (1713–1791), in 1780.

Statutory theory of proof, as it was received from medieval literature in the works of Farinacius, Damhouder, Carpzov, and their colleagues, was based on the notions of full proof, half proof, and circumstantial evidence (indicia). Full proof could consist only of the statements of two eyewitnesses or the defendant's confession. Circumstantial evidence, no matter how plentiful, could only amount to partial proof, and combination of one eyewitness and circumstantial evidence did not constitute full proof. Without full proof, however, the accused could not be convicted of a capital crime.

Sacramental confession had gained significance in the twelfth-century canon law and had been made an annual obligation on all Christians at the Fourth Lateran Council of 1215. Because of its increased cultural significance, it is no wonder that confession had become "the queen of proofs"(reginaprobationum) in criminal procedure as well. The problem, however, was how to obtain full proof if no eyewitnesses were available. This is where judicial torture offered a solution. Judicial torture was never evidence in itself, but was a means of acquiring evidence in the form of confession.

THE THEORY OF JUDICIAL TORTURE

At the beginning of the early modern period, the ius commune theory of torture was basically the same as it had been in the works of Gandinus and Durandus. The basic rules were similar across Europe. The use of torture was confined to capital crimes, for which the death penalty or mutilation could apply. Torture was intended as the last resort in situations in which no other means of gathering evidence was available. If there was already full proof in the form of two eyewitnesses or voluntary confession, torture was not necessary. The accused was to be threatened with torture before it was actually applied, for instance, by showing him the instruments of torture. The investigating judge was to follow the accused to the torture chambers and interrogate him as he was being tortured, while a notary recorded the findings. Sometimes a doctor's presence was also required; no advocate, however, was allowed for the accused.

Torture was meant to establish whether the accused had committed the crime, the commission of which (corpus delicti) had already been established by other means. This legal safeguard did not, however, apply to witchcraft cases. They were regarded as crimina excepta, 'exceptional crimes', in that their "traces disappeared with the act" (facti transeuntis). The law excluded certain classes of people from liability to judicial torture. Pregnant women, children below the age of twelve or fourteen, and old people (if torture might put their lives at risk) could not be tortured. Noble persons, public officials of a certain standing, clergy, physicians, and doctors of law were exempt from torture in some parts of Europe. Torture could not take place on Sunday or other legal holidays.

The most important legal safeguard in restricting the use of torture had to do with the amount of circumstantial evidence required to initiate it. According to the law, half proof in the form of the testimony of one eyewitness or a sufficient amount of circumstantial evidence was necessary to initiate torture. Both in theory and in practice it was, however, largely left to the judge's discretion to determine when there was enough circumstantial evidence, although literature provided examples and guidelines. Compared to modern standards of proof necessary for conviction, the standard of evidence required for torture was often higher.

Other safeguards were provided to help material truth prevail as well. Contemporaries were well aware of the dangers that torture entailed from the point of view of finding out what had actually happened. Leading questioning was thus prohibited, and the confession extracted under torture was to be repeated in court within a certain time limit. Only the voluntary confession given thereafter, within twenty-four hours or so, served as proof, and not the confession given under torture. The practical significance of this safeguard was seriously undermined by the fact that the accused could be taken back to the torture chamber should he or she decide to recant the confession. Much of the literature recommended the practice of verifying the information obtained through torture, but many legal experts complained that courts paid too little attention to verification in practice. If the accused, nevertheless, managed to resist torture and did not confess, he or she had to be acquitted, at least until new incriminating evidence appeared.

The statutory theory of proof, together with judicial torture, was not only limited to legal literature but was incorporated into some of the major European legislative pieces of the early modern period, for example, the Constitutio Criminalis Carolina of imperial Germany (1532), the French Ordonnance Royale (1539) and Grande Ordonnance Criminelle (1670), and the Nueva Recopilación of Spain (1567). In some parts of Europe torture was used not only on the accused, but also on those against whom full eyewitness proof had already been produced. The idea was to secure confession, considered necessary for salvation, or to obtain evidence about possible accessories.

The legal literature was not greatly concerned with the form that judicial torture could take; this was largely a matter of local custom. In each case, the individual judge selected the method of torture, supposedly taking into consideration the seriousness of the charge. The most widespread torture device was the strappado (corda, cola), "the queen of torments," in which the accused's hands were tied behind the back, and he or she was lifted up with a rope, sometimes with weights attached to the ankles. Or metallic devices, such as leg-braces, legscrews, and thumbscrews, were used to press the accused's limbs or fingers and to crush them. Other widely used methods included keeping the accused awake; being stretched on the rack; and inducing the sensation of drowning by wetting a rag stuffed into the accused's throat.

THE DECLINE OF TORTURE

In the seventeenth century, the system of judicial torture began to lose its practical significance, although it formally remained part of the law in most European countries until the late eighteenth and early nineteenth centuries. An important reason for its gradual disappearance was the erosion of its theoretical basis, the statutory theory of proof. In the sixteenth and seventeenth centuries, new forms of punishment were introduced as alternatives to death to cope with serious criminality, the most important being the galley, the workhouse, and the practice of exile and transportation. The new punishments called for more discretion in choice of punishment and sentencing. When the increased range of punishments and sentencing was combined with the different amounts of evidence available in practice, a revolution in the law of proof occurred. As John Langbein has shown, the "punishment upon suspicion" or "punishment for lying" (Verdachtstrafe, Lügenstrafe ) developed as a result of this. For lesser evidence, a lesser punishment now followed. Although the death penalty still required full proof, both executions and incidents of judicial torture decreased from the sixteenth and seventeenth centuries in many European regions.

Thus, Sweden, where the statutory theory of proof was only adopted in the seventeenth century, and in its already changed form, could always boast of not having accepted judicial torture. In practice, however, torture was not completely unknown there. The same can be said of Aragón, another state that did not formally allow the use of torture. The English experience demonstrates particularly clearly the close connection between torture and the law of proof. The English jury system began to develop before the reception of Roman law in Europe. It was thus the jury, not the Roman canon law of proof, that replaced the archaic modes of evidence in the Middle Ages in England. The jury developed considerable freedom in evaluating evidence and condemning on circumstantial evidence, making torture to extort confessions unnecessary. A regularized system of judicial torture thus never developed, and its use was limited to political cases. Another reason for England's rejection of torture was that, unlike the Continent, England's judicial system developed on the basis of unpaid lay judges, to whom it would have been dangerous to entrust a system of torture.

THE ABOLITION OF TORTURE

When Muyart de Vouglans wrote his treatise on criminal procedure in 1780, the medieval law of proof that had formed the basis of judicial torture had been eroded, and the philosophical and legislative attack on torture was already well under way. The best known critique of torture is Cesare Beccaria's (1738–1794) On Crimes and Punishments (1764), to which Muyart de Vouglans' work was in fact a response. Voltaire (1694–1778) joined Beccaria in fiercely condemning torture in some of his essays. According to the philosophes, torture could not secure correct judgments, since so much depended upon the ability of the accused to resist the physical pain involved. Torture was also wrong because it inflicted pain on people who had not been shown to deserve it. However, as Piero Fiorelli has demonstrated, these arguments were not the discoveries of the eighteenth-century philosophers, having been voiced by individual critics since the Middle Ages. Recent scholarship, especially the works of Fiorelli, Langbein, and Peters, has indeed shown that the historian of torture must look beyond the writings of the Enlightenment philosophers to understand why judicial torture was abolished.

European states abolished torture from their statutory law in the late eighteenth and early nineteenth centuries. Prussia was the first to abolish it in 1754; Denmark abolished it in 1770, Austria in 1776, France in 1780, and the Netherlands in 1798. Bavaria followed the trend in 1806 and Württemburg in 1809. In Spain the Napoleonic conquest put an end to the practice in 1808. Norway abolished it in 1819 and Portugal in 1826. The Swiss cantons abolished torture in the first half of the nineteenth century. By the mid-nineteenth century, European legislators had thus harvested the fruits that the early modern revolution of proof, followed by Enlightenment philosophy, had produced. As Langbein and Peters observe, the final abolition of torture occurred gradually and in close connection with a general revision of criminal law. Legislative reforms took place partly simultaneously with, but in general slightly after, the Enlightenment philosophers' attack on judicial torture.

See also Crime and Punishment ; Inquisition ; Law ; Star Chamber .

BIBLIOGRAPHY

Primary Source

Beccaria, Cesare. On Crimes and Punishments and Other Writings. Edited by Richard Bellamy. Translated by Richard Davies. Includes the translation of "Dei delitti e delle pene" (1764). Cambridge, U.K., 1995.