Torture - Edward Peters

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facts of slave torture, the torture of freemen proved to be exceptionally difficult, even in a period of general unrest such as had been the case in the desecration of the Herms. But the fear of the Syracusans over the possible incriminating testimony of Nicias was not unfounded in the political atmosphere of the fifth century. In 411, Phrynichus, a leading member of the oligarchy of the Four Hundred in Athens, was assassinated, and although the assassin, a soldier, escaped, an accomplice was taken and, as Thucydides says (Peloponnesian War, VIII.92), was tortured by order of the Four Hundred, although he revealed very little information under torture. Such irregular torture of freemen (although the victim of the Four Hundred was not an Athenian, but an Argive) seems to have been rare in Greece, perhaps the best-known case having occurred a century before in the torture of Aristogiton in 514 for his part in the assassination of the Peisistratid Hipparchus.

      Since Roman law, shaped by some Greek influences, constituted the greatest body of learned jurisprudence known to western tradition, its doctrine of torture influenced strongly the two revivals of torture that the western world has experienced – those of the thirteenth and twentieth centuries.

      Briefly put, in the earliest Roman law, as in Greek law, only slaves might be tortured, and then only when they have been accused of a crime. Later, they might be tortured as witnesses, although with severe restrictions. Originally only a criminal accusation against a slave could elicit slave testimony, but by the second century, slaves could be tortured in pecuniary cases as well. Freemen, originally preserved from torture (and from the forms of capital punishment reserved for slaves), come under its shadow in cases of treason under the Empire, and then in a broader and broader spectrum of cases determined by imperial order. The division of Roman society into the classes of honestiores and humiliores after the second century AD made the humilioris class liable to the means of interrogation and punishment once appropriate only for slaves. And even the honestiores could be tortured in cases of treason and other specified crimes, as defendants and witnesses.

      As in Greece, Roman slave-owners under the Republic had the absolute right to punish and torture their own slaves, when they suspected them of offences against themselves within their own property. This right was not abolished in Roman law until 240 AD, by a rescript of the emperor Gordian (Code 9.41.6). Cicero’s speech Pro Cluentio recounts a case in which Sassia, the mother-in-law of Cluentius Avitus, put one of her own slaves to torture in her own house. The slave confessed, was tortured a second time, and was then killed, Cicero argues, because of Sassia’s fear that he might retract his testimony elicited by torture. Such treatment of slaves seems to have been common in Rome, and led the great historian Theodor Mommsen to argue that Roman domestic discipline was the basis of later Roman penal procedure in civil and criminal law, a view that has much to recommend it.

      Since Roman law constituted part of the pattern for torture in later European law until the nineteenth century, some consideration of its character and details ought to be given here. There is no better place to start than with Mommson’s argument from domesticity.

      The shift of law in any culture from a conflict between individuals and families to a public trial is always a complex matter. Much of the legal procedure of the Roman Republic can only be understood from the point of view of private ‘justice’. From feud, even blood feud, and private revenge the next step led easily to voluntary arbitration by a third party, from voluntary or communal arbitration to arbitration imposed routinely by the state in the legis actiones (forms of legal action), then to a wider formulary procedure and finally to the procedure cognitio extra ordinem, in which the state wholly administered judicial proceedings. As Alan Watson (The Law of the Ancient Romans (Dallas, 1970), p. 10) has argued, some of these developments took place quite early among the Romans. In the cognitio extra ordinem the parties to a suit lose control over its course and the private citizen acting as an arbitrator gives way to a public official delegated by the emperor or by an official high in the imperial administration. In the course of this transition the power of the state increased from its original role in the legis actiones of controlling vengeance and organizing arbitration. In addition, certain actions came to be considered crimina, acts which put the security of society in danger and threatened the loss of the pax deorum, the peaceful benevolence of the gods, and these were distinguished from those purely private conflicts known as iudicia privata.

      This brief summary reflects the generally recognized divisions of Roman legal history: the period of ancient law (to the third century BC); the classical period (from the second century BC to the beginning of the third century AD); and the law of the later Empire (from the third century AD to the sixth century AD). Historians of Roman law, unlike those of Greek law, regard even the earliest Roman legal procedure as a collective process rather than exclusively one of self-help; the community voice was heard in any case early and consistently throughout a legal dispute, whether in the person of a voluntary arbitrator or that of a public magistrate.

      It has been argued that one of the great forces that transformed Roman law from the primitive and sacral stage to a rationalized and secular stage was the influence of Greek thought from the fifth century BC on. During this long and slow process, the oath and the testimony of witnesses acquired greater recognition, as did the formal character of complaints and the method of arbitrating them. The formulary procedure represented a greater sophistication in categorizing and weighing evidence, particularly that of written evidence. The later development of the early cognitio extra ordinem made it the standard form of the Roman trial, governed totally by a single magistrate who, usually a member of a class below the highest in Roman society, was professionally informed about legal matters.

      In the process of ancient classical law, the principle of the inviolability of the freeborn citizen was strictly adhered to. Theodor Mommsen pointed out that never in the history of the Republic was there any indication that that principle had been violated. Even Roman slaves outside of the household appear to have been vulnerable to torture only in criminal proceedings and not, like their counterparts in Greece, in civil cases indiscriminately. In his De partitione oratoria (34.117–18), written around 45 BC, Cicero discussed the advocate’s approach to evidence produced by torture:

      If examination of witnesses held under torture or demand to hold such examination is likely to help the case, you must first support that institution, and speak about the efficacy of pain, and about the opinion of our ancestors, who undoubtedly would have repudiated the whole thing if they had not approved of it; and about the institutions of the Athenians and Rhodians, highly cultivated people, with whom even freemen and citizens – most shocking as this is – are put to the torture; and also about the institutions of our fellow-countrymen, persons of supreme wisdom, who although they would not allow slaves to be tortured to give evidence against their masters, nevertheless approved of the use of torture in cases of incest, and in the case of conspiracy that occurred during my consulship. Also the contention usually employed to invalidate evidence under torture must be scouted as ridiculous, and pronounced to be doctrinaire and childish. Then you must produce confidence in the thoroughness and the impartiality of the inquiry, and weigh the statements made under torture by means of arguments and inference. These then more or less are the constituent parts of a case for the prosecution.

      Cicero seems to be wrong, at least about traditional Athenian law, and his evidence for the case of the Rhodians is unknown. His reference to torture in the Catiline conspiracy is the only evidence that torture may have been used or contemplated in 64 BC, but his prohibition of the torture of slaves to produce evidence against their own master is generally recognized as a Roman legal principle, although possibly as the result of senatorial decree rather than from immemorial custom. Cicero here, obviously, is defending the prosecutorial use of torture and presents arguments only in its favour – or rather describes the sorts of arguments an advocate would have to use to accredit it if he needed to invoke its use. His arguments are not unlike those Aristotle had given as part of the speechwriter’s stock in trade. Aristotle is specifically echoed in Quintilian’s Institutio oratoria (5.4.1) of the second century AD:

      A like situation arises in the case of evidence extracted to torture: one party will style torture an infallible method of discovering the truth, while the other will allege

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