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Torture

TORTURE

This article is concerned only with the use of torture as a means of obtaining a confession or other testimony in a judicial inquiry. Torture in the punishment of crime is dealt with elsewhere (see punishment).

History. Torture, although in use among many peoples from antiquity, was not employed by the Jews, and there is no mention of it in the Old Testament. The Greeks subjected slaves to torture, but exempted freemen, except in cases of conspiracy and murder. Roman law sanctioned its use, although there were attempts ineffective for the most partto restrict its application. With the barbaric invasions, resort to torture in the investigation of crime declined. It is questionable whether the barbarians made any use of it before their contact with the Roman world, but in any case they favored the or-deal in their judicial processes. Then, under the influence of Germanic customs and concepts, torture was little used from the nineth to the 12th centuries, but with the revival of Roman law, the practice was reestablished in the 12th century. The English common law did not recognize the legality of torture except for the peine forte et dure, which was a torture by pressure of weights that could be inflicted upon a prisoner who, out of malice, refused to plead. There were few instances in which torture was inflicted by order of a common-law judge, but its use by order of crown or council or extraordinary tribunal was common in the 16th century. The use of torture was abandoned in England by the middle of the 17th century.

Torture and the Church. In the early Church voices were raised against the practice (see Tertullian, De corona 11; De idololatria 17; St. Augustine, Civ. 19.6). It was proscribed for the Bulgarians in 866 by Nicholas I (d. 648). With the revival of its practice in Europe under the influence of Roman law, canonists and moralists appeared to regard it as too integral a part of the juridical system to be abolished without endangering the whole structure. In 1252 Innocent IV sanctioned the infliction of torture by the civil authorities upon heretics, and torture later came to have a recognized place in the procedure of the inquisitorial courts. According to the Church's existing legislation, force is not used to secure a confession from an accused person, and it is expressly stated that a person is not required to reveal the truth when interrogated judicially about a crime committed by himself. (1917 Codex iuris canonics c.1743.1).

Theory. After the revival of the use of torture in the 12th century, no attack of note upon the theoretical basis of the practice was made until the 16th century, when various influencesnotably, among others, the harshening of penal law under the absolutist governments of the time and the extravagances of the witch hunts and trials caused thoughtful men to seek a fresh view of the barbarous practice; it was not until the 18th century, however, that the budding protests bore fruit.

The use of torture as a means of uncovering the truth appears so futile, so unjust, and so revolting, that it is difficult for the modern mind to understand how it could have been tolerated by a civilized people. The barbarity cannot be objectively justified, and it is only when it is seen against the background of the times that it is possible to understand why people did in fact accept it. Nothing contributed more to its toleration than the fact that it was a part of the heritage of Roman law, which was held in great veneration. Again, it must be remembered that a different concept prevailed with regard to the position of the accused. He was not, as now in Anglo-American law, presumed innocent until convicted. Under Roman law, on the contrary, a credible accusation established a presumption of guilt, and this made it possible to view the suffering of an accused person under torture as being in some sense a punishment for his crime. Moreover, the accused was not exempt from an obligation to make self-incriminating statements. When questioned by a magistrate, even about his own guilt, he was bound to respond truthfully (see St. Thomas Aquinas, Summa theologiae 2a2ae, 69.1). Finally, it must also be remembered that during the centuries when the use of torture was an accepted judicial procedure, there was little squeamishness about resorting to cruelty in the interests of justice, as is evident in the savage penalties inflicted upon convicted criminals.

While not denying the right of an individual to immunity from violence, those who wrote in defense of the use of torture saw the right of immunity as yielding before the greater right of the state to discover guilty secrets that menaced its welfare or existence. If the state were not empowered to use torture to get at the truth, greater harm would result than would come by violating the liberty and persons of individuals (see Juan de Lugo, De iustitia et iure 37.13). Although the practice was thus defended by some, they laid stress upon the safeguards and limits that had to be observed if the use of torture was to be accounted licit (see St. Alphonsus Liguori, Theologia moralis 4.3.3). However, to the modern mind the defense is insufficient, because it weighs the damage done to the common good by an individual's obdurate silence only against the injury done to that individual when he is subjected to torture, whereas much damage is done to other individuals and to the common good itself when there is resort to torture. The use of torture has always been attended by grave abuses, against which protest and other forms of legal and moral counteraction have invariably proved ineffective. It lessens the majesty of law and weakens the security of all men who must see themselves as potential victims of similar mistreatment.

Bibliography: r. naz, Dictionnaire de droit canonique, ed. r. naz (Paris 193565) 5:141826. e. vacandard, Dictionnaire de théologie catholique, ed. a. vacant et al., (Paris 190350) 7.2:201668, g. neilson, Encyclopedia of Religion and Ethics, ed. j. hastings (Edinburgh 190827) 12:391393. f. helbing, Die Tortur (Berlin 1926). a. mellor, La Torture (Paris 1949).

[p. k. meagher]

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