Torture - Edward Peters

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aggravated death sentences and the extent of popular resentment against Christians and other especially despised enemies, scepticism about the reliability of evidence gained from torture pales as a moderating element in a society which knew of no way procedurally to avoid torture and therefore was inevitably committed to its excesses.

      In the history of the legal institutions and mentality of the Germanic invaders and settlers of the Roman Empire after the fourth century, we can see yet again the transformation of archaic legal practices into more complex ones, partly as a result of internal changes within Germanic societies and partly as a result of the availability of a developed, learned law, in this case that of Rome. As in archaic Greek and perhaps early Roman law, the concept of personal injury and self-help precedes that of crime, the concept of the feud precedes that of trial, and freeman status not only distinguishes the Germanic warrior from the slave and the stranger, but attributes to him many qualities similar to those that had once protected Athenian citizens and Roman citizens of the honestioris class. But the Germanic societies of early medieval Europe did not, for the most part, swiftly develop and adapt their practices and values to those of Roman law. In most cases Roman law did not become widely known and studied in northern Europe until the end of the eleventh century. Not until the twelfth did much of it influence the legal institutions of Europe.

      But for those who were not freemen, or those who were disgraced freemen, Germanic law did permit torture and punishments of a kind that diminished personal honour. Slaves accused of crimes, the wives of a murdered man of rank, and the freeman publicly pronounced a traitor, deserter or coward might all be treated in this way. Tacitus’ Germania, written at the end of the first century, clearly recognizes these characteristics of Germanic legal culture.

      In many cases among the Germanic legal codes (which certainly do not comprise the sum total of actual Germanic legal practice), there is an echo of the earlier custom of the Roman torture of slaves. But even in this case, as Lea observed (Torture, p.26), ‘the legal regulations for the torture of slaves are intended to protect the interests of the owner alone.’ Even slaves accused of crimes (here, as in early Roman law, only the accused slave could be tortured) remained valuable property, and the inveterate Germanic respect for the property of a freeman tempered even its adaptation of those parts of Roman legal practice that did not violate its fundamental premise of freeman-capacity among litigants.

      Tacitus’ observations on the virtual untouchability of free Germanic warriors, however, can best be understood in terms of our own recently-acquired sense of the difference between shame-cultures and guilt-cultures. One did not live long or well without honour in the world described by Tacitus. But the Germanic world described by Tacitus did not live long itself. From the fourth to the sixth centuries, it broke through the Roman frontier, established peoples and kingdoms within the old provinces of the Empire, and finally supplanted the Empire itself in the West. The rapid social changes that followed from these adventures drastically reoriented Germanic society, a process that can be traced from the transformation of kingship to the appearance of written legal codes. At first the principle of the personality of the laws separated German from Roman; one went to law according to the laws of the people among whom one was born. Germanic legal practices and Roman legal practices existed side by side in many places, and perhaps it was in this way that the Roman torture of slaves was adopted by the Germans, although by the fifth and sixth centuries torture in Roman law had long since been extended to all but the honestiores. The Germans seem to have regarded themselves as the equivalents of honestiores, and, aside from occasional unsanctioned actions by their kings, seem to have preserved the freeman from torture consistently throughout most of their early legal history.

      Besides the divisions of Germanic society into the ranks of slaves and free warriors, however, other social distinctions appeared after the fourth century. Gradually, the independent status of Romans and their advantage in clinging to their own law by right of the personality of law slowly faded as Roman legal institutions disappeared and the Roman subject-population merged with the Germanic population of the two kingdoms. By the seventh century, for example, the code of the Visigoths no longer recognized Gothic and Roman legal procedures; Visigothic law, at least, was on its way to becoming territorial rather than personal. Further, the differentiation among free Germanic warriors proceeded apace, and in the same Visigothic code we find references to the torture of ‘freemen of the lower class’, possibly an echo of late Roman legislation, but surely a sociological phenomenon that bore some meaning within Visigothic society itself. In several countries, ‘freemen of the lower class’ merged with upwardly mobile slaves to constitute a new half-free class of serfs, but by then these and their legal personality had virtually dropped out of Germanic legal practice altogether.

      In the case of the Visigothic law alone do we see a substantial body of doctrine concerning the torture of both slaves and freemen. Although the propietary character of slaves, as noted above, is recognized, and slave testimony was considerably restricted, it seems to have been practised routinely among the Visigoths. Book VI, Title 1 of the Visigothic Code describes the circumstances in which torture is permitted and mandated. Torture even of freemen of the lowest class can only take place either in the case of a capital crime or in one involving a sum of money greater than 50 (later, 250) solidi. Only freemen can accuse freemen, and no freeman can accuse someone of a higher rank than himself. Torture must take place in the presence of the judge or his appointed representatives, and neither death nor the loss of use of a limb is permitted. Homicide, adultery, offences against the king, the people as a whole, counterfeiting and sorcery are the crimes for which, assuming the qualifications of the accuser’s and the accused’s rank are met, torture can be used, even upon a noble. But even when the peculiarly Visigothic characteristics are noted, it is clear that the law of the Visigothic Code is modelled upon late Roman imperial law, even as it mitigates its severer sanctions.

      The Visigoths alone wrote this much torture into their laws, and it remained in those laws through the early medieval history of the Iberian peninsula and was revived in the period of the reconquista after the eleventh century. Although a few other Germanic codes preserve echoes of the Roman law of torture, the fact of the accusatory process and the undeveloped rules of evidence worked against the practical survival of torture until the process of working Roman law into the legal culture of northern Europe began in earnest during the twelfth century.

      2

      The Queen of Proofs and the Queen of Torments

       The legal revolution of the twelfth century

      A revolution in law and legal culture took place in the twelfth century and shaped the criminal – and much other – jurisprudence in Europe until the end of the eighteenth century. It derived both from a transformation of the law as it had existed between the sixth and twelfth centuries and from an increasing awareness of the need to create universally binding and applicable laws for all of Christian Europe, and the possibility of doing so. Thus both the ‘revival’ of learned Roman law and the immediately subsequent formation of a universal canon law opposed themselves to what rulers and earlier scholars perceived as the provincial, ‘irrational’, unprofessional and archaic nature of law before the twelfth century. Generally, legal historians have agreed with twelfth-century jurists’ view of the legal culture that preceded them. That culture has been termed irrational, ritualistic and primitive – and, in less charitable and understanding circles, superstitious and savage. Current research is in the process of revising such opinion. Early European law, however, operated according to certain cultural premises, and it could hardly be reformed until those premises no longer compelled assent. In the legal universe of early Europe, law was not a separately reformable part of a segmented culture; ideas of nature, reason, God and society had to change as well – indeed, before the law itself could change.

      The reasons for that legal and intellectual revolution are many. They touch upon both fundamental cultural assumptions and the most important of social bonds; of, in the words of Julius Goebel, ‘the deadly pressure of social change upon the outmoded structure of rights and remedies’. In spite of the intensity of that pressure, the archaic European structure of rights and remedies first had to be perceived

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