Torture

TORTURE, the general name for innumerable modes of in flicting pain, and especially for those employed as an incident of judicial process. From this point of view torture was always in flicted either as a means of eliciting evidence from a witness or from an accused person either before or after condemnation; or as a part of the punishment. The second was the earlier use.

Its development in mediaeval times may be traced to the decline of the ordeals and trial by battle. While the appeal to God (which is so marked a feature of the ordeals) exists, confession is un necessary. Thus, the capitularies of Charlemagne make no pro vision for torture, while including the earlier modes of procedure. When the fourth Lateran Council, in 1215, prohibited the clergy from participating in the ordeal, English law developed trial by jury for crime, and thus rendered the extraction of a confes sion of guilt from the prisoner unnecessary. Continental law, on the other hand, considered a confession the best of all evidence, and all the machinery of the law was organized to obtain it.

Even when torture was a normal incident of judicial procedure, enlightened lay opinion was overwhelmingly opposed to its em ployment. Cicero (Pro Sulla), Seneca and St. Augustine con demn it, although the latter regards it as a necessity, while Ulpian, in Justinian's Digest, declares : "Torture (quaestio) is not to be regarded as wholly deserving or wholly undeserving of con fidence; indeed, it is untrustworthy, perilous and deceptive. For most men, by patience or the severity of the torture, come so to despise torture that the truth cannot be elicited from them; others are so impatient that they will lie in any direction rather than suffer torture, so it happens that they depose to contradic tions and accuse not only themselves but others." Among later writers, Montaigne, Montesquieu, Bayle, Voltaire, Sonnenfels, Beccaria, Verri and Manzoni all condemn it. The influence of Beccaria in rendering the use of torture obsolete was undoubtedly greater than that of any other legal reformer. He emphasizes the unfair incidence of torture, as minds and bodies differ in strength. Moreover it is to confound all relations to expect that a man should be both accuser and accused, and that pain should be the test of truth, as though truth resided in the muscles and fibres of a wretch under torture. Apologists of torture may be found chiefly among jurists, but authors of books of practice, and notably Damhouder, von Rosbach, von Boden and Voet, are aware of its deficiencies. Muyart de Vouglans derives torture from the law of God. Other apologists are Simancas, bishop of Badajoz, Engel, Pedro de Castro, and in England Sir R. Wiseman.

Greece.

Both Aristotle and Demosthenes regard torture as the surest means of obtaining evidence. At Athens slaves, and probably at times resident aliens, were tortured, but free citizens only rarely, the practice being forbidden by a psephism passed in the archonship of Scamandrius. Torture was sometimes inflicted in open court, and the rack was employed, even for free citizens. A list of tortures is given in the Ranae of Aristophanes (V. 617) and the wheel is alluded to in Lysistrata (V. 846). Isocrates and Lysias refer to torture under the generic name of ar0(3Xwats but it was generally called Ocicravot in the plural (cf. Lat. tormenta). Torture was frequently inflicted by Greek despots, and both Zeno and Anaxarchus are said to have been put to it.

Rome.

The Roman system was the basis of all subsequent European systems which recognized torture as a part of their procedure, and the rules attained a refinement beyond anything approached at Athens. Cicero declares that the law of torture rested originally on custom, and no existing fragment of the Twelve Tables alludes to it. It is mentioned frequently by writers

both of the republic and the empire. During the republic, a master had power to torture his slaves. In the early empire, however, restrictions were imposed. A lex Petronia forbade masters to punish slaves by making them fight wild beasts, without magis terial authorization, while Antoninus Pius required a master who ill-treated his slave to sell him. Not until the later empire was the killing of a slave by excessive punishment made homicide. The law of the later empire, relating to torture, is set forth at length chiefly in the titles De quaestionibus of the Digest and the Code—the former consisting largely of opinions from the Sen tentiae receptae of Paulus, the latter being largely a repetition of constitutions contained in the Theodosian Code. Both sub stantive law and procedure were dealt with, but a large discretion was left to the judges. Torture was used both in civil and criminal trials, but in the former only upon slaves and freedmen or in famous persons (after Nov. xc. i.i. upon ignoti and obscuri if they showed signs of corruption)—e.g., gladiators—and in the ab sence of alia manifesta indicia, as in cases affecting inheritance. Only slaves were tortured during the republic, but in the empire it was extended to freemen accused of crime. Certain persons were exempt by a constitution of Diocletian and Maximian from the liability to torture, e.g., soldiers, nobles of high rank, and their descendants to the third generation—decuriones—and their chil dren under 14, and pregnant women. These exemptions did not extend to accusations of treason or sorcery. A freeman could be tortured only where he had been inconsistent in his depositions, or where there was a suspicion of lying. There were detailed rules concerning the torture of slaves, and the Romans believed that this was the most efficacious means of obtaining the truth. Un like freemen, they could be tortured as witnesses, always on be half of their master, against him only in treason, adultery, frauds on the revenue, coining and similar offences, attempts by a hus band or wife on the life of the other, and in cases where a master had bought a slave in order that he should not give evidence against him. The exemption from accusation by a slave extended to the owner's father, mother, wife or tutor, and a former mas ter; but a slave-owning corporation was not privileged. Where a charge of adultery was brought against the wife, her husband's, her own and her father's slaves could be tortured. Detailed rules governed the application of torture. Other modes of proof must first be exhausted, and the evidence (argumentum and indicium) must have advanced so far that the slave's confession alone was required to complete it. The amount was at the discretion of the judge, but it must not injure life or limb, otherwise the judge became infamis. Except in treason, the unsupported testimony of a single witness was not a sufficient ground for torture. Lead ing questions could not be asked. The quaesitor asked the ques tions, the tortores applied the instruments. The principal forms of torture were the equuleus, or rack, the plumbatae, or leaden balls, the ungulae or barbed hooks, the lamina, or hot plate, the male mansio (comparable with the "Little Ease" of the Tower of London) and the fidiculae, or cord compressing the arm. As a part of punishment, torture existed in Rome from earliest times, when it was permitted in respect of defaulting debtors. Later, crucifixion, mutilation, exposure to wild beasts in the arena, and other modes were in common use. Through the leges bar barorum, Roman doctrines relating to torture were transferred, with modifications, to mediaeval Europe.