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Torture. Edward Peters
Читать онлайн.Название Torture
Год выпуска 0
isbn 9781512821697
Автор произведения Edward Peters
Издательство Ingram
Echoing Mommsen, Floyd Lear (Treason in Roman and Germanic Law, 1965) has suggested that the Roman doctrine of treason, the crimen laesae maiestatis, the injuring or diminishing of majesty, grew out of early Roman religious sanctions against the killer of a father, parricidium, and the actions of a Roman who becomes an enemy of his own community and aids its enemies, perduellio. Included in perduellio are desertion from the army, the delivery to the enemy of any Roman territory, giving aid and comfort to the enemy, the inciting of a war against Rome or a rebellion within, and the breaking of the ban of exile by returning illegally to Italy. Perduellio also included assaults on magistrates and violations of the obligations of client to patron. Again echoing Mommsen, Lear traces the history of the term maiestas so that it becomes associated with the dignity of the representatives, or tribunes, of the plebs, who were not protected by the patrician notion of perduellio. By the end of the Republic, the single term maiestas, majesty, had come to stand for the dignity of the Roman people and state, having absorbed earlier terms and extended itself to insult as well as injury. On occasion a temporary dictator might arrogate such status to himself as to make assaults on him technically a crime against the maiestas of the Roman people, as Octavius had in the case of Q. Gallius before he became emperor. Once the head of the state became the Augustus, he was able to cluster about himself the old sanctions against parricide, violating the duties of a patrician, injuring or insulting the tribune of the people, and violating religious sanctions, so that the crimen laesae maiestatis was a crime of impiety as well as insult and injury, and then not simply against a private individual, but against one who embodied the dignity, sacrality and majesty of the Roman state in his own person.
Such a spectrum of authority explains the freedom of the Julio-Claudian emperors to protect themselves against real or fancied threats that is so grimly calendared in Suetonius and Tacitus. This precocious development of the Roman law of treason survived the Julio-Claudian house and influenced not only the incidence of torture in the Roman Empire, but an extraordinarily heightened idea of the state.
Besides the transformation of the doctrine of maiestas, we must also consider some of the legal consequences of social change in the Empire between the first and the fourth centuries. The old Roman Republican distinctions between freemen and slaves and, among the freemen, between patricians and plebeians, effectively ended with the social wars and the fall of the Republic. The new distinctions, which appear in law by the third century AD, speak of two kinds of citizen: honestiores and humiliores. The former were privileged and served as the effective governing class of the Empire; the latter were the rest of the people, those in minor trades, the poor and the uprooted. The way in which these distinctions were translated into law may be seen in a passage from Justinian’s Digest:
The credibility of witnesses should be carefully weighed. Therefore, in investigating their persons attention should be paid first of all to the rank of each, whether a man is a decurion [an urban official ranking as honestoris] or a plebeian [humilioris] or whether his life is honourable and blameless, or on the contrary he is a man branded by public disgrace [infamia: see below] and is reprehensible … (22.5)
Justinian’s directive was not limited to advising magistrates on how to estimate the character of witnesses. For by the sixth century the legal reflections of honestiores/humiliores and the new ruthlessness of criminal law under the emperors made the humiliores the first Roman free victims of judicial torture, outside of those who had been tortured under the provisions of the crimen laesae maiestatis. Nor was torture the only burden that humilioris status entailed. Certain kinds of punishment, such as corporal punishment by being thrown to the wild beasts or by being crucified, were the lot of the convicted humilioris. The lowest class of free citizens of the Empire, subject to such examination and punishment as had once been applicable only to slaves and to free citizens in cases of treason, had now slipped juridically down to that level itself. Citizenship no longer offered the protection to all citizens it once had done.
By the period of the early Empire several features of Roman legal history helped make the law of treason central to the question of torture. On the one hand, some categories of people were regarded as being so low, and on the other, some kinds of crime so vile, as to break down restraints otherwise present in the system. The establishment of the emperor’s position as personification of the majesty of the Roman people, and the emergence of treason as a particularly vile and personal crime, help to define the context in which torture of freemen developed in Roman criminal law. But a classic case will remind us of the strength of the protection which the law afforded normally to Roman citizens around the middle of the first century AD.
One of the best-known trials in the history of Roman law, although not for legal reasons, is that of St Paul before the Roman courts of Jerusalem and Caesarea, told in Acts 22–26. Paul, charged with various crimes, was brought before a centurion who proposed to examine him by torture in order to get at the truth of the charges against him. When he was tied up in preparation for being whipped, Paul asked the centurion: ‘Can you legally flog a man who is a Roman citizen and moreover has not been found guilty?’ After verifying Paul’s claim with his superior, the centurion not only released him, but worried, ‘because Paul was a Roman citizen and that he had put him in irons’. Although the rest of the trial illustrates other points of Roman procedure, Paul’s claim that citizenship exempted him from the routine criminal investigative procedures is a striking example of the sacrosanctity of Roman citizenship in a highly visible provincial administrative centre.
It should also be noted that Paul merely had to voice the claim to citizenship for the torture to be suspended. The claim had to be investigated meticulously. Nearly two centuries later Ulpian (Digest 48.18.12) cited an imperial rescript stating: ‘When anyone to avoid being tortured alleges that he is free, the Divine Hadrian stated in a rescript that he should not be put to the question before the case brought to decide his freedom has been tried.’ Thus, in cases like that of St Paul, the claim to freedom acted as a kind of interlocutory decree that had to be resolved before the original process could proceed. And from the evidence of Acts, it appears that Hadrian himself was merely restating an older principle of law.
The Romans used a number of terms to describe what we, somewhat indiscriminately, called ‘torture’. The investigative process in Roman criminal procedure was called quaestio, which also referred to the court itself. Tormentum originally referred to a form of punishment, including the aggravated death penalty, to which, under the Republic, only slaves were subjected, although later freemen were also liable to it for certain crimes. When tormentum was applied in an interrogatory way, the technical term was quaestio per tormenta, or quaestio tormentorum, that is an investigation by means that had originally been strictly a form of punishment, and that of slaves only. Ulpian was also specific about the linking of these terms:
By ‘torture’ we should understand, torment and corporeal suffering and pain employed to extract the truth. Therefore, a mere interrogation of a moderate degree of fear does not justify the application of this edict. In the term ‘torment’ are included all those things which relate to the application of torture. Hence, when force and torment are resorted to, this is understood to be torture. (Digest 47.10.15.41)
Ulpian elsewhere could remark (Digest 29.5.1.25): ‘We, however, understand the term torture to mean not merely being put to the question, but every inquiry and defence that may be made in the investigation of the death of the master.’ Evidently, by Ulpian’s day, quaestio and tormentum/tortura had become virtually synonymous. This identification is preserved in French, in which the term la question in the criminal process was long synonymous with la torture. Thus, the terminology of Roman torture explains why it was originally confined to slaves, since it was a development of punishments applicable only to slaves.
Indeed, the vast bulk of the material in the Digest in the title ‘Concerning Torture’ (48.18) refers routinely to the torture of slaves. The single exception consists of a statement by Arcadius Charisius (Digest 48.18.10.1): ‘But when the charge is treason,