Torture - Edward Peters

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command by the emperor, it was, nevertheless, widely and indiscriminately applied to freemen for far lesser offences.

      Clearly, between the second and the fourth centuries, the privilege of not being subject to torture was being eroded, not only from the bottom of society upward but, beginning with treason and slowly enlarging to include other offences including those determined by the pleasure of the emperor, it was also being eroded from the top down. The occasional and irregular torture of freemen by the Julio-Claudians created a practical precedent that later emperors and jurists may have attempted to regulate in theory, but expanded in practice. And magistrates below the level of emperor were quick, or indifferent, to follow suit.

      Nor was treason, even a vastly expanded definition of treason, the only reason that emperors legitimated the use of torture against freemen. Caracalla in 217 (Code 9.41.3) authorized it in cases when a woman was accused of administering poison. In the fourth century Constantius (Code 9.41.7) made soothsayers, sorcerers, magicians, diviners and augurs liable to both interrogatory torture and the aggravated forms of capital punishment. Constantine and Justinian (Code 9.9.31; Novel 117.15.1) authorized its use in cases of unnatural lusts and adultery respectively. Diocletian issued an edict stating that all Christians should be deprived of the privileges of status and be subject to the application of torture, an edict naturally not preserved in the Corpus of the Christian emperor Justinian.

      By the fourth century, the old sharp line between privileges of freemen and slaves had long since disappeared, and a variety of offences brought freemen under the threat of torture. At the top of Roman society, first treason, then the expanded definitions of treason and the addition of other offences, also exposed honestiores to torture. The appearance of a class of bureaucratic magistrates, no longer the learned jurists of the second and third centuries, probably made the application of torture more routine and less considered. The series of imperial edicts cited above which tried to remind officials about the restrictions on torture probably reflected a real problem and real imperial and honestioris concerns.

      The chief legal sources for the Roman law of torture are found in the Code of Justinian (9.41) and in the Digest (48.18). The former consists of imperial constitutions, the latter of the opinions of jurists. Together, the sources discussed so far offer a comprehensive account of the occasions of torture, but they say little of methods of torture. They also contain a jurisprudence of torture and a survey of opinion on the reliability of evidence gained by torture. The remarks of Cicero and Quintilian cited above suggest that the orators were perfectly aware that the occasions of torture and the results of testimony elicited by torture had to be manipulated during the trial depending upon whether the speaker defended or opposed the evidence in question. Such purely practical viewpoints as they advocate does not suggest a particular oratorical approval or disapproval of torture, but they do suggest no absolute conviction of the reliability of evidence elicited in this manner. The Digest, while presenting the point of view of the jurists, is at once less ambivalent and more cautious. One of the most important texts in the Digest (48.18) consists of twenty-seven extracts from the lost Treatise on the Duties of a Proconsul by Ulpian. Ulpian’s very first observation notes that Augustus had stated that ‘confidence should not unreservedly be placed in torture’, and that torture should not begin in inquiry. In fact, the opening of Ulpian’s whole discussion deals with cautionary warnings about the place of torture in the judicial process, the requirement of other evidence, the presence of strong suspicion, the prohibitions on torturing slaves for evidence against their own masters, and the kinds of questions that should be put during torture. The Digest (48.18.1.23) contains a remarkable reservation concerning the whole question:

      It was declared by the Imperial Constitutions that while confidence should not always be reposed in torture, it ought not to be rejected as absolutely unworthy of it, as the evidence obtained is weak and dangerous, and inimical to the truth; for most persons, either through their power of endurance, or through the severity of the torment, so despise suffering that the truth can in no way be extorted from them. Others are so little able to suffer that they prefer to lie rather than to endure the question, and hence it happens that they make confessions of different kinds, and they not only implicate themselves, but others as well.

      Thus, emperors, orators and jurists all recognized the problem of evidence extracted by torture, although such concerns seem to have been the limit of their concern for the practice. Like the Greeks, the Romans recognized in treason, and in servile or low social status, adequate causes for the continuation of practices that they themselves knew were highly unreliable. The jurisprudential safeguards the Romans devised were based not upon an anachronistic humanitarianism, but upon their conviction that the evidence produced by it was a res fragilis et periculosa, a ‘difficult and dangerous business’, and could easily be misleading or false. Valerius Maximus cited a number of cases in which torture produced evidence that proved unreliable. Quintus Curtius Rufus (Historia, VI.xi) tells the story of the torture of Philotas for evidence in a conspiracy against Alexander the Great. After extensive torture, Philotas promised to confess if it were stopped. When the torture ceased, Philotas turned to the investigator and asked ‘What do you wish me to say?’ Curtius Rufus observes that no one knew whether to believe Philotas, ‘for pain elicits both true confessions and false statements’. Although they had some misgivings about the legitimacy of torture, the Romans also had few misgivings about its effect upon human beings. Between the second and the fifth centuries, they expanded and developed a method of investigation about whose reliability they had few illusions. Instead of questioning the method, they surrounded it with a jurisprudence that was designed to give greater assurance to its reliability, a jurisprudence that is admirable in its scepticism and unsettling in its logic.

      To appreciate both scepticism and logic it is necessary to look at Roman methods of torture, about which both the Code and the Digest are conspicuously silent. These methods remind us of the multiple meanings of such terms as tormentum, since the means of interrogatory torture sometimes derived from aggravated physical punishments and sometimes offered new models for such punishments, including means of capital punishment.

      The standard means of torture (later, apparently, adopted as a means of aggravated capital punishment) was the rack, a wooden frame set on trestles in which the victim was placed with hands and feet fastened in such a way that the joints could be distended by the operation of a complex system of weights and ropes. Such distension of the joints and muscles was the aim of related tortures such as the lignum, two pieces of wood that pulled the legs apart. A torture that seems to have been derived from capital punishment was that of the ungulae, hooks that lacerated the flesh. Torture with red-hot metal, flogging, close constriction of the body in confinement (the mala mansio, or ‘evil house’) – some of these techniques borrowed from the Greeks – constituted additional forms of torture. One juridicial source for other forms may be found in the Digest (48.19), ‘On Punishments’, for various forms of corporal punishment were also adapted for use in interrogatory torture. The jurist Callistratus (Digest 48.19.7) lists ‘castigation with rods, scourging, and blows with chains’ among these. Greek methods of capital punishment had included beheading, poison, crucifixion, beating to death with clubs, strangling, stoning, hurling from a precipice and burial alive. The Romans prohibited posioning and strangling, and they reserved crucifixion for slaves and particularly despicable criminals. Ulpian points out another Roman prohibition (Digest 48.19.8.3): ‘No one can be condemned to the penalty of being beaten to death or to die under [beatings with] rods or during torture, although most persons, when they are tortured, lose their lives.’ That is, although torture by rods often ends in death, the death of the person under examination cannot be the purpose of such torture. The Romans also seem not to have used the torture on the wheel, which the Greeks had used.

      Aside from the titles in the Digest, the historians and the Christian apologists offer the most detailed accounts of Roman penal practices, including torture. Lactantius’ On the Deaths of the Persecutors and Eusebius’ History of the Church offer amazing detail of both formal and informal torments inflicted upon Christians, including all of those mentioned above, whether as interrogatory tortures or aggravated sentences

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