Torture - Edward Peters

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of synodal witness in the jury of presentment, or the grand jury. The grand jury presented its accusations, not to a powerful local official, but to travelling royal justices, who could then go to trial by means of a petty jury. The kind of evidence that was acceptable in these circumstances was much broader than that acceptable in Romano-Canonical procedure. Circumstantial evidence could accumulate until a jury found it adequately convincing for conviction – as a Romano-Canonical judge could not. There was no state prosecutor who had to be controlled by a rigid system of limitations that demanded torture if played out to its formal conclusion. The English judge did not find guilt or innocence – the trial jury did. With the breadth of English rules of evidence, the absence of a state prosecutor, the different role of the judge, and the responsibility of the grand and trial juries, the place of confession in English law loomed far smaller than in continental law, and the problem of torture became generally irrelevant. Torture did not have a place in the law of England after 1166. Thus in spite of the growing accommodation with torture on the part of canon lawyers in the thirteenth century (and canon law ran in England as surely as it ran elsewhere), and in spite of the discussion of torture in the Liber Pauperum of Vacarius, a scholar of Roman law at Oxford in the 1140s, the reforms of Henry II gave a procedure to the law of England that eliminated the use of torture in the very centuries in which continental legal reforms were drawing closer and closer to it.

      In a number of jurisdictions, of course, the accusatory process survived, even without the ordeals, and it did so too in the matter of lesser offences in areas where the Romano-Canonical process also existed for higher crime. The so-called ‘feudal’ courts proved to be reluctant to give up their traditional jurisdiction and their traditional forms of procedure, and they survived in many parts of Europe down to the end of the eighteenth century. Elsewhere, as in the Slavic lands and Russia, rational means of proof arrived late, sometimes under Italian influence, and they often co-existed with irrational means of proof in ways distinct from the rest of Europe. For example, in sixteenth-century Lithuanian law torture could be used only in the accusation of theft, and only at the insistence of an injured private party. It could be used only once, and then only within a year of the actual theft and in such a way as not to mutilate the body of the accused. If the torture failed to elicit a confession, the plaintiff had to compensate the tortured victim with a money payment.

      In other parts of Europe the revival of torture took place during a period when, technically, torture had never ceased to be used in the laws of parts of Spain, notably Castile. Although the Corpus Iuris Civilis seems not to have influenced Visigothic Spain, the earlier Codex Theodosianus did, and its provisions for torture were extensive. Torture survived in Castilian law, figured prominently in the Fuero Juzgo of 1241, and occupied a prominent place in the seventh partida of Las Siete Partidas of Alfonso X in 1265. In Aragon, on the contrary, it was abolished in 1325.

      In France, an ordonnance of Louis IX in 1254 permitted torture, but it forbade the torture of ‘honest people of good reputations, even if they are poor’ on the basis of the testimony of a single witness, the formal ‘half-proof’ of general Romano-Canonical procedure.

      In Germany, torture is mentioned in the statutes of Vienna, around the middle of the thirteenth century, but in the form of a prohibition: it is forbidden to torture the accused by hunger, thirst, chains, heat or cold, or to force a confession to specific charges by blows. Any confession must be made freely, in full possession of mental faculties, before a judge. By the fourteenth century local regional legal codes had developed a fuller jurisprudence of torture, as did the regional laws of central and eastern Europe, generally under the influence of the revived Roman law. Torture appears not to have been part of any Scandinavian laws until the sixteenth century, when it was introduced under the influence of new and more ambitious and influential criminal legal codes from Germany.

      The system described so far, whether in the realm of irrational or rational proofs, also possesses a social dimension. In the world of irrational proofs, those of the judicial combat and the compurgatorial oath seem particularly to have pertained to freemen, since only freemen could bear arms and only a freeman’s word was considered worthy of belief. Fighting men tended to see in the judicial combat an appropriate form for their social status, and many courts recognized this throughout the Middle Ages. Indeed, the judicial combat, in the form of the duel, became one of the enduring signs of nobility long after the passing of the age of irrational proofs, and many courts prohibited serfs and very poor freemen this method of acquittal. For them was reserved the unilateral ordeal. This social apportionment of the means of irrational proof, as we have seen, was continued into the system of rational proofs. People who were considered ‘honest’, of good reputation, and perhaps important enough to merit it, were the ideal witnesses and, to a certain extent, privileged defendants. In many jurisdictions it took much more evidence to put a solid citizen to the torture than it took to put a known, or suspected, rogue in the same place.

      But such divisions themselves were often unable to withstand the levelling effects of the professionalization of the Romano-Canonical procedure. Once torture had been admitted as a routine part of procedure, privilege tended to become weaker. This probably first occurred in the case of particularly heinous crimes, or crimes considered crimina excepta – those crimes whose importance was so great that they permitted the waiving of normal legal procedure in order to obtain a conviction. The history of the crimen exceptum has not yet been written, but it is arguable that it too is a development of thirteenth-century legal procedure, and that it was built around such offences as heresy, magical practices, counterfeiting, and certain kinds of homicide and treason. Those brought up on charges could count on much less protection from their social status. In the case of exempted persons, for example, later legislation concerning witchcraft and magic sustained most of the excepted categories of persons not subject to torture, but they specifically excluded old age as an exempting principle.

      In short, the Romano-Canonical procedure itself contained levelling tendencies that the older system of irrational proofs did not; in addition, the development of a concept of infamy, or that of ‘excepted crimes’, tended to hasten that levelling process. This is a pronounced feature of the legal history of the fifteenth and sixteenth centuries. It is one of the paradoxes of the social history of early modern criminal law that, although some earlier social distinctions and privileges were lost, this levelling process also subjected larger numbers of people to procedures that originally were intended only for the lowest and most disreputable classes of society. By the fifteenth century every man might be tortured, as the groundwork of early modern criminal law was firmly and professionally laid out.

      The treatment of torture in the preceding section of this chapter dealt with its description in the laws and in the jurisprudence of the period from the thirteenth century on. Such a focus has led some legal historians to praise the reason and restraint of the thirteenth and fourteenth centuries and to condemn later periods for the perversion of what had been a rational and protective legal system. Thus Walter Ullmann:

      This humanization of torture lasted as long as legal scholarship was destined to play a decisive role in the actual application of the law. The progressive decline of legal studies at the universities in later centuries brought forth a lower standard of the lawyers who were called upon to serve the cause of law. The authority of scholars diminished likewise, and their influence upon the practical administration of the law gradually faded away. The law itself was no longer regarded with the respect which was characteristic of previous centuries: lawlessness in social life and laxity in the application of the law went hand in hand.

      Such a view seems to neglect unduly some conditions of actual practice in the thirteenth and fourteenth centuries and to attribute perhaps too great a practical role to the high standards of thirteenth-and fourteenth-century academic theory as well as too little a role to the academies of the fifteenth and sixteenth.

      From its origins as a practical police tactic to its position as a recognized part of the Romano-Canonical legal procedure, torture was consistently employed in courts whose personnel were not always academically trained experts, and it is doubtful that the carefully guarded consilia and academic treatises ever had much of an influence except in offering a juridical ideal for actual magistrates and torturers.

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