Torture - Edward Peters

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change could be initiated.

      Among the consequences of the legal revolution was the recovery and adaptation of the body of learned, written Roman law, the creation of specifically legal education, the emergence of a legal profession, and new bodies of applied law through western Europe. These changes were adaptations to the changed social conditions of twelfth-century Europe. They were preserved until the late eighteenth century, not only by the continued study and practice of Roman or Roman-influenced law, but by the printing process, law schools, courts and philosophical jurisprudence; and they circulated throughout Europe until the end of the ancien régime. The tradition that they created has survived until the present. In one of the most important consequences of the revolution, the inquisitorial procedure displaced the older accusatorial procedure. Instead of the confirmed and verified freeman’s oath, confession was elevated to the top of the hierarchy of proofs, so elevated, in fact, that jurists called confession ‘the queen of proofs’. Differently from Greek and Roman law, the place of confession in legal procedure, rather than the status of the accused or the nature of the crime, explains the reappearance of torture in medieval and early modern law.

      The ‘criminal law’ of Europe before the twelfth century was predominantly private. Public officers did not search out and investigate crimes. Injuries were brought to the attention of the officials of justice by those who had suffered them, and it was the accuser’s responsibility to see that legal officers acted. The accusation of one private party by another was, as the jurists said, the ‘ordinary remedy’ for what, since the twelfth century, we have called a ‘crime’. Since both parties possessed freeman-capacity, litigation between them was strictly limited according to the inviolability of the person of a freeman. The accuser found the proper court (one that professed jurisdiction over both parties), made his accusation, swore an oath to its truth, and called the other party into court to answer. The accused, faced with the charge, needed in general only to take an oath that the charge was false. It might be that the court then decided that the accused’s oath by itself was not sufficient for a decision and required oath-helpers, compurgators, in addition to the oath of the accused. These compurgators were not witnesses to fact, but only of their willingness to support the accused by testifying to their consent to his oath. If the number of compurgators was sufficient, the case stopped there with a dismissal of the charge. The oath was the strongest ‘evidence’ an accused party could wield, and for most charges it was more than adequate grounds for ceasing litigation.

      In some cases, notably those against men whose reputation was bad, some charges, chiefly those of capital crimes, might entail the subjection of the accused to the ordeal, a process in which the judgement of God was invoked to determine an issue rendered insolvable by the limitations of human juridical procedure. Finally, in some cases, the two parties or parties designated by them might engage in judicial combat, which was also considered a form of ordeal, on the grounds that God would permit the victory only of the party in the right. Oath, ordeal and judicial combat constituted the ‘irrational, primitive, barbarian’ modes of proof before the mid-twelfth century. Archaic and unsatisfactory as they later appeared to be, they responded adequately to the fundamental premises of freeman-capacity and the procedural limitations it imposed upon courts. They also reflected the sense of what some historians have called ‘immanent justice’ during the period: the assumption that divine intervention in the material world was continuous in such a way as to refuse to permit wrongs to go unpunished, even to the extent of being invocable automatically against presumed wrongdoers. People accepted the judgements of ordeal, oath and judicial combat because they believed that they were judgements of God as well as ancient and accepted practices.

      From the ninth century on, these procedures became part of the liturgical life of European society as well. Ecclesiastical rituals for the administering of the oath and the ordeal appeared regularly, and clergy participated in them – more, probably, because they could not deny the idea of immanent justice than because of the practices’ antiquity and widespread use. Even in those areas in which some traces of Roman procedure survived, notably in Lombardy, little headway was made against them before the twelfth century, although the responsibility of the accused to furnish proof was sometimes modified to permit the plaintiff to do so as well, and ordeals seem to have been used less frequently; nevertheless, the system of the judgements of God remained in universal use throughout Europe.

      In some courts, chiefly ecclesiastical, other traces of older Roman procedure were still prominent. The form of procedure known as inquisitio – the initiating of an action by an official, the collection of evidence of fact, the taking of testimony from witnesses, and the judgement issued by the investigating judge – was used in a limited number of kinds of cases. Charlemagne used this procedure, but not widely, and the tide of procedure and jurisdiction flowed away from inquisitio between the ninth and the twelfth centuries.

      In order for the older system to be replaced, a number of distinct changes had to happen: an entire system of ancient and respected methods of procedure and the cultural assumptions they reflected had to be eliminated and replaced; the idea of immanent justice, or judgement of God, had to give way to a notion of effective human juridical competence and authority; and both clergy and laity had to concur in these changes. During the course of the twelfth century, except in a very small and specialized category of cases, these three changes did in fact occur. The older system of proofs gave way before two distinct but equally revolutionary procedures, those of the inquisitorial process and the jury; the ideal of a justice within reach of human determination came to be widely accepted, particularly with the creation of a legal profession and the spread of the new uniform procedures; churchmen and learned lay people both professed to find the idea of immanent justice repellent, stripped the earlier procedures of their liturgical dimension, and then built up a formidable theological denial of their efficacy.

      The revolution did not take place simply in one area of social life or for one motive. It was not the revived study and application of Roman law in the twelfth century, nor a leaving off of earlier barbarian practices alone that caused these changes, but a complex combination of changes in society and political authority that influenced the new legal procedure in several different ways. The circles in which homogeneous legal practices were applied widened, as popes, kings and territorial princes centralized much of their authority; during this centralizing process, the administration of law fell more and more into the hands of specialists and, from the early twelfth century on, educated specialists who hunted out inconsistency and conflicting principles, and imposed a particular kind of rationality upon legal procedure. Specialists also wrote. The influence of literacy, from written instruments to specialized treatises on procedure, was enormous after the mid-twelfth century and seems to have played a key role in changing the nature and shape of social thought as well as specific details of procedure. Writing draws with it rationality. The schools and courts of the twelfth century were peopled by those who had studied formal logic and applied it to practical problems of conflicting sources and perceived paradox, and insisted that it guide legislation and the operation of the law.

      The story of these changes has been told often and well; as they took place, a new system of Romano-Canonical legal procedure was erected in place of the older judgements of God. The inquisitorial procedure supplanted the accusatorial procedure. Whether the entire procedure was in the hands of a single judge, as in the inquisitorial system, or divided between a jury finding a verdict and a judge issuing a penalty, as in the jury system, the world of human experience required that proofs be sought, produced and examined, that witnesses be classified and interrogated under oath, and that the accused have some rational means of defence against the charges.

      As each of the older procedures was abandoned, of course, a great deal of uncertainty remained about the new. As new procedures displaced older ones, themselves now under suspicion, the one kind of certainty that remained untouched was the value of confession. Indeed, and briefly, it may be said that the value accorded to confession offered a kind of protection to the new procedures that evolved. Confession ascended to the top of the hierarchy of proofs and remained there long after the Romano-Canonical inquisitorial procedure and the procedure of trial by jury had come to be firmly in place themselves. For jurists and lay people alike, confession was regina probationum: the queen of proofs. For all the uncertainties that attended the gathering and weighing of evidence, the testimony of witnesses, and the unpredictability

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