Torture - Edward Peters

Скачать книгу

since with some their capacity of endurance makes lying an easy thing, while with others weakness makes it a necessity. It is hardly worth my while to say more on the subject, as the speeches both of ancient and modern orators are full of this topic. Individual cases may however involve special considerations in this connection. For if the point at issue is whether torture should be applied, it will make all the difference who it is who demands or offers it, who it is that is to be subjected to torture, against whom evidence thus sought will tell, and what is the motive for the demand. If on the other hand torture has already been applied, it will make all the difference who was in charge of the proceedings, who was the victim and what the nature of the torture, whether the confession was credible or consistent, whether the witness stuck to his first statement or changed it under the influence of pain, and whether he made it at the beginning of the torture or only after it had continued some time. The variety of such questions is as infinite as the variety of actual cases.

      The evidence of the Roman orators, like that of the Greek orators, is specialized and illuminates only part of the problem. Legal sources proper offer two more important kinds of information: the transformation of Roman society and the reflection of that transformation in criminal law. The Republican distinction between the free citizen and the slave became less important in two respects after the establishment of the Empire: the emergence of imperial constitutions and practices in the first and second centuries AD and their effect on the law, particularly the law of treason; and the growing social divisions of the Empire that produced the two general classes known as the honestiores and humiliores. The first of these exerted great influence upon the law itself, and the second created new categories of relative liability under the law.

      Henry C. Lea, in his essay on torture (Superstition and Force (1866), separately reprinted as Torture, 1973) cites a passage from Suetonius (August. xxii) which suggests the ominousness of imperial privilege. During the second Triumvirate, a praetor named Z. Gallius happened to salute Octavius while he carried a tablet under his toga. Octavius, thinking the tablet might have been a sword and Gallius the agent of conspiracy, had Gallius arrested and tortured before putting him to death. The idea of majesty that had once resided collectively in the Roman people now came to reside in the person of the emperor. The emperor could not only make law, but he could make exceptions to the law which did not necessarily recognize the old Republican privileges of the freeman, particularly when the imperial safety was (or was imagined to be) in danger.

      The sources for the legal history of the Republic – the Twelve Tables, the orators, the senatorial decrees, and the occasional comments of jurists, such as are found in the Institutes of Gaius – disappear under the Empire, and they are replaced by the edicts and constitutions of individual emperors, commentaries on these by later jurists like Paulus and Ulpian, and other literary materials. The culmination of this process in the Corpus Iuris Civilis of Justinian, compiled in the sixth century, presents a formidable body of law, rationally laid out and explained, that has influenced jurists ever since. But from the sixteenth century to the present, the problem of the relation between Justinian’s compilation and the legal history of the period between the first and the early sixth centuries AD has occupied the labours of scholars and jurists alike. Justinian’s Corpus cannot simply be unrolled and be expected to reveal the legal development that led up to it. However, so many of the fundamental texts of imperial Roman legal history are contained in the Corpus that reference to it is essential, and convenient.

      Since the figure of the emperor – although normally with the advice of jurists – stands at the head of Roman law, we must consider both the growth of imperial policy in crimes of state, and the social changes that created two classes of citizenship in Roman society and two classes of liability in Roman law.

      Octavius’ torture of Gallius was the first, but not the worst, example of extra-procedural imperial actions towards suspected traitors. Suetonius (Tib. 61–2) details with great maliciousness the steps by which Tiberius sought out real and imagined conspiracies, so that ‘every crime was treated as capital’, even to the point at which a friend of the emperor’s, invited from Rhodes, was absentmindedly put to the torture because the emperor assumed that he was simply a new informant. ‘While Caligula was lunching or revelling, capital examinations by torture were often made in his presence’ (Cali. 32). Claudius ‘always exacted examination by torture’ (Claud. 34), and Domitian, ‘to discover any conspirators who were in hiding, tortured many of the opposite party by a new form of inquisition, inserting fire into their private parts, and he cut off the hands of some of them’ (Dom. 10).

      Thus far, we have concentrated on the activities of the emperors in the area of interrogatory torture alone, but we must note that the pages of Suetonius and Tacitus are filled with extravagances of cruelty, suspicion and murderous, psychotic rage that colour the history of the Julio-Claudian dynasty. It is sometimes difficult to sort out a single thread among the blood that smears early Roman imperial history. At times, imperial anger resulted in a deliberate parody of the judicial procedure: Tacitus describes a scene in which Tiberius investigates the discovery of some mysterious marks beside the names of the imperial family in the papers of one Libo:

      As the defendant denied the allegation, it was resolved to question the slaves, who recognized the handwriting, under torture; and, since an old decree prohibited their examination in a charge affecting the life of their master, Tiberius, applying his talents to the discovery of a new jurisprudence, ordered them all to be sold individually to the treasury agent: all to procure servile evidence against Libo, without overriding a senatorial decree! (Ann. 11.30)

      Tacitus’ remark about Tiberius’ ‘applying his talents to the discovery of a new jurisprudence’, is more than bitter irony, since the emperors’ position and power permitted them to develop extraordinary procedures regarding the old Roman crime of maiestas, or perduellio, the injury of the Roman people. Tacitus also tells the story of the freed slave Epicharis:

      In the meantime, Nero recollected that Epicharis was in custody on the information of Volusius Proculus; and, assuming that female flesh and blood must be unequal to the pain, he ordered her to be racked. But neither the lash nor the fire, nor yet the anger of the torturers, who redoubled their efforts rather than be braved by a woman, broke down her denial of the allegations. Thus the first day of torment had been defied. On the next, as she was being dragged back in a chair to a repetition of the agony – her dislocated limbs were unable to support her – she fastened the breast-band (which she had stripped from her bosom) in a sort of noose to the canopy of the chair, thrust her neck into it, and, throwing the weight of her body into the effort, squeezed out such feeble breath as remained to her. An emancipated slave and a woman, by shielding, under this dire coercion, men unconnected with her and all but unknown, she had set an example which shone the brighter at a time when persons freeborn and male, Roman knights and senators, untouched by the torture, were betraying each his nearest and his dearest. For Lucan himself, and Senecio and Quintianus, did not omit to disclose their confederates wholesale; while Nero’s terror grew from more to more, though he had multiplied the strength of the guards surrounding his person. (Ann. XV.57)

      It is in the light of procedures such as these that one should, for example, consider the persecution of the Christians. Originally Christians were protected by their Jewish status, since Judaism was recognized as a legal religion in the Empire, although it did not conform to normal Roman requirements for licit religions. By the last quarter of the first century AD, Roman magistrates were able to distinguish the separate Christian identity from Judaism, and Christians therefore fell into the category of followers of illegal religions and were subjected to the legal liabilities such status entailed. Although there is much scholarly disagreement over the technical reasons for the persecution of Christians, scholars are generally agreed that the torture and aggravated death sentences under Nero, beginning in 64 AD, constituted a precedent for regarding Christians as both impious and subversive and therefore subject to investigation by torture and subsequent shameful and degrading punishments. Lea astutely catches the combination of unique psychological circumstance and the legal power of the emperors in his remark that ‘under the stimulus of such hideous appetites, capricious and irresponsible cruelty was able to give a wide extension to the law of treason’ (Torture, p. 10). For the law of treason, the crimen laesae

Скачать книгу