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Torture. Edward Peters
Читать онлайн.Название Torture
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isbn 9781512821697
Автор произведения Edward Peters
Издательство Ingram
In spite of the early confusion between torture, ordeals and punishments that prevailed in the twelfth century, the influence of such jurists as Azo, Tancred, Innocent IV and Hostiensis in the early and mid-thirteenth century erected a doctrine of Romano-Canonical procedure in criminal cases that endured until the end of the eighteenth century. The increasing professionalism of lawyers and judges, the role of the schools, and the proliferation of professional opportunities in cities empowered to appoint their own judges and establish their own municipal laws, all contributed to the clarity, common character, and definitiveness of the procedure.
Since later developments often obscure the early shape of the procedure, from the modifications of the Inquisition to the routinized practices of the period after 1450, it may be well to lay out first the doctrines that informed the judge of a crime and led through a complex process to a final declaration of innocence or guilt, and in the latter case to the infliction of the prescribed punishment. Given the great variety of particular applications of the law across Mediterranean and transalpine Europe and the different times at which different regions (including those areas like England that rejected large parts of it) adopted the procedure in its full form, the following description must be general, drawn from different legislations and different academic opinions alike. It constitutes merely a control for the consideration of torture in specific places and times.
A judge could discover the perpetration of a crime only in one of three ways: it might be reported to him by his own officials, who had sworn to seek out crimes and were protected by their oath of office from later accusations of calumny; he might hear of it through fama, notoriety, the oaths of respectable citizens who saw or heard of it; or he might know of it privately as an individual. In the last case, although there was some dispute on this point, the judge was generally considered to be one citizen aware of fama, and therefore absorbed into the second category.
Having been informed that an offence had taken place, the judge had to ascertain that in fact it had. His justification in doing this was the report of officials or common fama. ‘It must first be proved’, said the jurist Bartolus, ‘that a crime has in fact been committed.’ The crime had to be punishable. The judge might then call witnesses, hear testimony, and see if a prima facie case for anyone’s likely guilt had emerged. This part was often called the inquisitio generalis or ‘general inquiry’, it followed the initial denunciations and might be compared to a modern inquest.
Once the accused was identified, the inquisitio specialis began: the ‘special, or particular, inquiry’ which would determine the accused’s guilt or innocence – the trial proper. The accused had to be served a writ upon which were inscribed the substantial points of the accusation. The writ brought him to court and, in a residual resemblance to the old accusatorial procedure, either fama or the judge himself were said to stand in the place of the accuser. By the fourteenth century, however, the public prosecutor had emerged to take over this role and the management of the case against the accused as well. (Since torture could only be invoked in cases whose punishment entailed death or mutilation, we shall assume that the punishable crime was of sufficient seriousness.)
Once the inquisitio specialis had begun, the judge was required to use every means possible to discover the truth before the application of torture. This doctrine, that torture could only be used ‘when the truth could not be illuminated by all other proofs’, and the doctrine of the hierarchy of statutory proofs, from two eyewitnesses and confession down through the ‘half-proofs’ and the indicia, framed any decision to apply torture and, from the fourteenth century on, literally took the decision out of the judge’s hands. Once torture was raised as a possible course of action, there had to be a great, although incomplete, body of evidence against the defendant, some of it circumstantial perhaps, but all of it presumptive. This evidence had to be tested itself: fama had to come from reputable people; eyewitnesses had to agree on every particular of their testimony; evidence had to be weighed according to a well-known set of criteria.
In addition, the defendant had to be given a written list of the indicia against him; he could cross-examine the witnesses against him; if the judge decreed torture, the defendant could appeal on the grounds that the indicia were insufficient or that he was an exempted person. Exempted people, a category drawn from Roman law but greatly modified in the Middle Ages, included children under a certain age, pregnant women, people over a certain age, knights, barons, aristocrats, kings, professors and, according to some, but not all, views, clergy. The appeal constituted an interlocutory decree and had to be answered before torture could proceed.
The torture itself was surrounded by protocols: it could not be savage or cause death or permanent injury; it should be of the ordinary kind, with new tortures frowned upon; a medical expert had to be present, and a notary had to make an official record of the procedure.
Even under such terms, the confession made under torture was not itself valid. It had to be repeated away from the place of torture. If the defendant recanted, torture might be repeated, because the original confession constituted another indicium against him. The combination of the presumptive evidence and the confirmed confession permitted the judge to announce the verdict and punishment to be carried out. If the judge had violated the guidelines for torture, he might later be sued under the sindicatus process (a formal review of a judge’s actions) when his judicial term had ended.
This brief account of the European criminal procedure as it existed in most places between 1250 and 1750 derives from legislation and the opinions of the most influential legal scholars and constitutes a model against which actual practices and differences may be measured. As critics have long pointed out, the inquisitorial procedure has a built-in prosecutorial bias. No matter how restricted the judge is procedurally, such problems as his weighing the indicia, the suggestiveness of the interrogation under torture, the quick willingness to accept a confession without then checking its details, and the tendency to torture severely, to elicit a guilty plea instead of a confession, all stack the system against the defendant. The very caution expressed in the thousands of pages of discourse on the jurisprudence of torture between the thirteenth and the eighteenth centuries indicate that medieval and early modern jurists were very well aware of the dangers of the system. They too, spoke of Ulpian’s res fragilis et periculosa, and they knew what they spoke of; but they worked in a system in which confession was the queen of proofs, and between the two, confession and its key role in the Romano-Canonical process seems to have carried much the heavier weight.
It is interesting to contrast the procedure of the Continental courts with that of other European regions that went through the same legal revolution but emerged without Romano-Canonical procedure and without torture. In twelfth-century England, the Assize of Clarendon stated that the king and his officials would put down certain categories of serious crime throughout the kingdom. England had emerged from more than a decade of civil war, and the subjects of Henry II, great and small, appear to have been more than willing to see the criminal consequences of the Anarchy repressed. The king’s judgement and punishment were to fall on all those who were indicted by a local jury of respectable citizens. This, the origin of the grand jury, indicted defendants, who were then held over for trial by a travelling royal justice. The ordeal of water was used in the trial itself, until its abolition in 1215. At that time, after much uncertainty and speculation, King Henry III offered the petty jury, the actual trial jury, as a voluntary means of determining guilt or innocence.
Behind these developments there lay more than a century of particular English history: under Henry I (1100–1135), powerful royal officials had undertaken prosecutions on their own. Between 1135 and 1166 great distaste was shown in England for the independent exercise of prosecutory powers by royal officials. In Church courts, in which historically a group of legitimate clergy, the testes synodales, or synodal witnesses, might accuse someone in a manner prescribed by certain scriptural texts, a similar growth of prosecution by officials had developed. When Henry II produced the Assize of Clarendon in 1166, he did not restore independent prosecution and accusation by royal officials,