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Torture. Edward Peters
Читать онлайн.Название Torture
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isbn 9781512821697
Автор произведения Edward Peters
Издательство Ingram
Customarily, as has been pointed out, slaves could be tortured only in criminal cases. The emperor Antoninus Pius, however, extended their liability to pecuniary cases in the second century:
The Divine Pius stated in a rescript that torture could be inflicted upon slaves in cases where money was involved, if the truth could not otherwise be ascertained, which is also provided by other rescripts. This, however, is true to the extent that this expedient should not be resorted to in a pecuniary case, but only where the truth cannot be ascertained, unless by the employment of torture it is lawful to make use of it, as the Divine Severus stated in a rescript. (Digest 48.18.9)
Thus, the area of law in which slaves could legitimately be tortured expanded to certain civil areas by the second century. At the beginning of the Empire, Augustus had cautioned against the use of torture (Digest 48.18.8): ‘I do not think that torture should be inflicted in every instance, and upon every person; but when capital and atrocious crimes [capitalia et atrociora maleficia] cannot be detected and proved except by means of the torture of slaves, I hold that it is most effective for ascertaining the truth and should be employed.’ About jurists’ and emperors’ doubts concerning the efficacy of evidence obtained, by torture, we will speak below. Here it is sufficient to note that the range of torture expanded dramatically between Augustus’ time and that of the Antonine emperors in the second century. The qualification ‘when the truth cannot otherwise be ascertained’, marks both Augustus’ and Antoninus Pius’ observations, but it seems to have come to mean less and less during the second and third centuries.
As the occasions for torturing slaves expanded, they also began to be extended into the lowest class of citizens. Callistratus, around 200 AD, noted a similar development in terms of the death penalty (Digest 48.19.28.11): ‘Slaves who have plotted against the lives of their masters are generally put to death by fire; freemen sometimes also suffer this penalty, if they are plebeians and persons of low rank.’ An early fourth-century rescript of the emperors Diocletian and Maximian (Code 9.41.8) states:
We do not permit soldiers to be subjected to torture, or to the penalties imposed upon plebeians in criminal cases, even when it appears that they have been dismissed from the service without the privileges of veterans, with the exception of those who have been dishonourably discharged. This rule shall also be observed in the cases of sons of soldiers and veterans. In the prosecution of public crimes, judges should not begin the investigation by resorting to torture, but should first avail themselves of all accessible and probably evidence. If, after having obtained information relative to the crime, they think that torture should be applied for the purpose of ascertaining the truth, they only ought to resort to it where the rank of the persons involved justifies such a course; for, by the terms of this law, all the inhabitants of the provinces have the right to the benefit of the natural benevolence which we entertain for them.’
Public dishonour and ‘low condition’ thus became two of the circumstances by which freemen might be subject to torture. Let us consider them in order.
The early distinction between slaves and freemen, and between patricians and plebeians, included, for the Romans, the idea of personal dignity, honour, esteem and reverence. In defining dignitas, Cicero (De inventione 2.166) stated: ‘Dignity is honourable prestige. It is worthy of respect, honour and reverence.’ The Romans, always acutely sensitive to any hint of the diminishing of dignity or reputation, recognized and named the facts of their loss – infamy [infamia] and [ignominy] – long before they made a formal legal doctrine of them. For a Roman, whether in or out of court, by formal or informal means, to lose social respect was a severe psychological and social blow. Romans could, and did, go to great lengths to prevent their honour from being lost or diminished. J. M. Kelly has recently suggested that Roman fear of shame acted as one factor inhibiting litigation, even in cases where one had right and the law on one’s side. Since the Roman trial was one of the few places in which reprehensio vitae, vituperatio – unabashed, highly eloquent artistic insult – was the stock in trade of opposing advocates, and where the usual laws of defamation did not apply, attacks on personal honour and dignity accompanied the trial procedure. Romans also recognized vilitas – the practice of certain dishonourable trades or professions. On occasion, the Edict of the Praetor dictated that certain kinds of individuals could not bring suit before his court. Among those barred from the Praetor’s court were homosexuals, procurers, gladiators, those who fought wild beasts in the arena, comic and satirical actors, those who had suffered dishonourable discharge (missio ignominiosus) from the army, and certain individuals condemned in shaming legal procedures. During the second century AD the condition of infamy was recognized as covering most of these cases. From this time on, the legal sources concentrate much more precisely upon the juridical nature of infamy, on the rules governing magistrates’ application of it, and the juridical consequences it entailed.
During the fifth and sixth centuries a substantial jurisprudence of infamia developed. This development paralleled the extensions of the occasions when slaves could be tortured, when freemen might be interrogated and punished by formerly servile methods, and when ‘low’ condition exposed more and more freemen to torture itself. These changes are not unrelated. Commenting in the second century on the old law of the Twelve Tables, the jurist Gaius had distinguished the plebs as comprising all those below senatorial rank. By the first and second centuries, the upper rank of Roman society had expanded to include more people than senators alone, especially in the equestrian, or ‘knightly’ rank. This upper rank acquired the older privileges of patricians and senators. Those not in the upper rank (that is, those called by the second century the honestiores) became the humiliores, and just as the distinction between honestiores and humiliores grew sharper, particularly in terms of the idea of personal dignity and legal privilege, so the distinction between the humiliores and the slaves grew blurred, and the humilioris, lacking the dignity of the upper rank, acquired some of the indignity of the lowest rank. Arcadius Charisius makes this point (Digest 22.5.21.2): ‘Where the circumstances are such that we are compelled to accept a gladiator, or some person of that kind, as witness, his evidence is not to be believed, unless he is subjected to torture.’ The infamous person, like the slave of old, lacks the dignitas to offer voluntary testimony merely under questioning; torture must validate his testimony.
The developing doctrine of dignitas and infamy constituted one means of imposing upon hitherto free citizens disabilities that once had pertained to slaves alone. That the humilioris class of free citizens (made no less vulnerable by the extension of universal Roman citizenship by Caracalla in 212) was acquiring new and formerly servile liabilities in matters of legal procedure between the first and the fourth centuries is amply illustrated by steps taken in imperial rescripts to protect the honestiores from a similar fate. In a text already cited, Diocletian and Maximian protected the status of soldiers; the same emperors repeated a rescript of Marcus Aurelius from the second century regarding the preservation of the dignity of honestiores:
It was decided by the Divine Marcus that the descendants of men who are designated ‘Most Eminent and Most Perfect’ to the degree of great-grandchildren, shall not be subject either to the penalties or the tortures inflicted upon plebeians, if no stigma of violated honour attached to those of a nearer degree, through whom this privilege was transmitted to their descendants. (Code 9.41.11)
Other instances of such efforts at protection of the honestiores are many. Ulpian claimed the same privileges for decurions, local town councillors, and their children (Code 9.41.11), a right that had to be renewed by the fourth-century emperor Valentinian (Code 9.41.16), who excluded only the case of treason from its defensive scope. Theodosius the Great, in 385, insisted upon the exemption of Christian priests from torture (Code 1.3.8), thus indicating the alignment of the Christian clergy with the honestioris class. That these protections were needed is indicated by a rescript of the Emperor Valentinian in 369, which indicated (Code 9.8.4) that although torture could be routinely applied in the