Torture - Edward Peters

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the late eleventh century on. But this was not without precedent. An addition to the law of the Visigoths states that a freeman accused of a crime had to undergo the ordeal of boiling water in order to see whether his interrogators ought to proceed to the torture. But the stream of legal literature that began to flow from the schools and teachers of Bologna early in the twelfth century began to distinguish among these confused aspects of criminal procedure and separated the legal definition of torture from the earlier ordeals, using the newly-read texts of the Code and the Digest for their definitions. Although not all commentators dealt with the sections De quaestionibus, and although it is sometimes difficult to tell the difference between teaching material and actual descriptions or prescriptions of judicial practice, by the early thirteenth century teaching and practice appear to have drawn very close together.

      The most important text in this respect is the Summa of the great Roman lawyer Azo, written around 1210. The text is important, as Fiorelli points out (La tortura, I, 123–4), ‘not only for its great quantity of data and citations, nor for the immense influence that the pages of this work exerted on the later doctrine, since it was reprinted and meditated upon and cited as if its author were still alive for four hundred years after his death, but because it is the unique surviving work from the period before the closing of the glosses.’ Azo’s mastery of his materials, his presentation, and his awareness of judicial practice of his own age mark his Summa as virtually the earliest surviving treatise to contain a discussion of torture as a legal incident in European history. Other Roman lawyers, from Roffredo of Benevento and Accursius to Thomas of Piperata and Albertus Gardinus later in the century, filled out and extensively developed the work of Azo.

      In this respecct, the Roman lawyers went far beyond the scholars of ecclesiastical law in the twelfth century. The greatest of these, Gratian, whose Concordia discordantium canonum, or Decretum, written around 1140, became the basic textbook of canon law for nearly eight centuries, clearly stated that ‘confession is not to be extorted by the instrumentality of torture’, echoing centuries of ecclesiastical prohibition of torture. From the mid-twelfth century, however, canon lawyers considered the Roman law doctrines of torture and by the first half of the thirteenth century had approved its use in civil law procedure.

      The first references to the practice of torture, however, occur entirely outside both the ecclesiastical and the academic legal frameworks. The Liber iuris civilis of the comune of Verona in 1228 empowered the ruler of the city to seek evidence in doubtful cases by the duel, any other judgement of God, or by torture. In some cases in the early thirteenth century, of course, torture must have seemed very like the ordeal: God would strengthen those who were just in order that they could resist it. It seems clear that those who are recorded as first using torture are local magistrates, like the podesta of Verona in 1228, or the officers of the Count of Flanders around 1260. Some of the earliest indications of the use of torture, then, indicate that it was introduced as a police procedure, perhaps even before any trial had taken place, and by lay officers. Some qualifications of the laws of Verona and other Italian city-republics and in Flanders itself in the course of the thirteenth century suggest further attitudes toward it. In Ghent in 1297, the count and his officers were forbidden to torture a citizen of the town without the approval of the town council. In Vercelli in 1241 no one was to be tortured ‘unless he is a known criminal, a thief, or a man of ill fame’. As police powers broadened, informal torture was used from the early thirteenth century on, but originally as a méthode policière, and only much later assimilated into legal procedure. Citizens protested its use, at least against fellow citizens of good repute, but they approved it in the case of those generally of ill fame. Magistrates needed confessions and, as they found in the course of the thirteenth century, torture was often able to extract them. In the growing and crowded cities of thirteenth-century Flanders and Italy, the enforcement of a centralized criminal law often fell to the lot of legal officers who had much to do before a case came to trial.

      In these early cases in lay courts, torture was probably used as a police method so that in the event of too few eyewitnesses, or insufficient other indicia, the case might begin with a confession. Once the confession became essential to the trial proper, however, methods used to achieve it had to be considered as part of legal procedure and therefore out of the hands of the count’s or podesta’s officers. In such cases, in the course of the thirteenth century, the kinds of privileges claimed for themselves by the citizens of Ghent and other towns disappeared. Once torture became part of legal procedure, fewer exemptions because of rank or status could be allowed. A man might be exempt at first because of his reputation as an upright citizen and a trustworthy person, but even this status did not long survive the routinizing of torture in court procedures. During that process there were indeed restrictions on torture, but they were not these restrictions.

      As torture was introduced into legal procedure proper, it had to take its place within the framework of confession and the law of evidence. Both ecclesiastical and lay law asserted, for example, that no confession could be extorted. Hence, torture was not a means of proof, but a means of obtaining a confession. It did not intend to force a guilty plea, but a specific statement that contained details that ‘none but the criminal could possibly know’. It could be expected to achieve these goals because of those events that triggered its use in the first place. First, there had to be at least one eyewitness or sufficient probable cause that the accused had committed the crime; the probable cause was measured by the number of specific indicia ranked and weighted according to accepted procedure. Second, when it was decided to apply torture, the court had to be reasonably convinced that a confession would be obtained. Third, the accused would be preached to and implored to make a confession, and to this end he was often shown the instruments of torture before the application itself.

      R. C. van Caenegem (‘La preuve’, p.740) has summarized the procedure we have been describing:

      In the last analysis it was the needs of criminal practice and new principles for the pursuit of criminals that were responsible for the reappearance of torture in Europe, and not the revival of Roman legal studies. It seems that the renewal of Roman law and the reception of torture in ecclesiastical practice were the result of the diffusion of the inquisitorial procedure in Europe.

      Compared to the older forms of procedure, the new inquisitorial process appeared far less repugnant to contemporaries than it may at first seem to us. It was certainly more professional. The inquisitorial procedure offered much that would seem familiar and acceptable to a modern litigant: the avoidance of rigid, excessively formalized, and ritually announced and answered charges; the open airing of testimony and the weighing of evidence from both parties; the presence of a trained judge who might also act equitably in weighing intangibles. At its outset in the twelfth century at least, inquisitorial procedure seemed to reflect precisely that reliance upon reason, conscience, and a broadened concept of the social order that historians have praised in other aspects of life in this period.

      In addition to the new criminal, the new magistrate, and the new procedure, the twelfth century also witnessed new (or apparently new) forms of religious dissent. In some specific areas, notably the schools and universities, an enormous leeway in discussion and disputation was entirely permissable, but among those who were thought to have no professional qualifications for dispute, and indeed those who opposed the universally understood teaching magisterium of the bishops and pastors, the appearance of religious dissent, whether aimed at the structure and powers of the Church or at actual dogma, was perceived by orthodox laity and clergy alike as far more dangerous than any ordinary crime, no matter how despicable. The apparent magnitude of dissent in society, the newly articulated authority of the Church and clergy, and the unique problems involved with the discovery of intellectual crime generated considerable ecclesiastical and lay concern, and for several reasons the new inquisitorial procedure (particularly in cases where accusers were hard to find, or unwilling to testify) offered an appealing approach to the problem.

      The process itself, or rather an earlier form of it, had, of course existed as a routine procedure in ecclesiastical courts for centuries. In many cases there was hardly the need for a process at all, since a number of dissidents were willing to announce their beliefs freely. In the early eleventh and twelfth centuries, aside from sporadic acts of mob violence, bishops generally used expulsion from the diocese

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