Rivista internazionale di diritto comune 19 (2008)

kenneth pennington

Torture and Fear: Enemies of Justice

 

 

 

After a long hiatus torture is once again a part of American experience^[1]. As Jeremy Waldron has eloquently written^[2]:

 

It is dispiriting as well as shameful to have to turn our attention to this issue. In 1911 the author of the article on “Torture” in the Encyclopedia Britannica wrote that ‘the whole subject is now one of only historical interest as far as Europe is concerned...’. Perhaps what is remarkable is not that torture is used, but that it (or something very close to it) is being defended by well-known American jurists and law professors... John Yoo... of Berkeley... Alan Derschowitz... <of> Harvard... Jay Bybee... <of the> Ninth Circuit Court.

 

Other scholars have raised their voices to protest this lamentable chapter of recent American history. John Langbein recently reissued his book on torture in early modern Europe with the sobering reflection^[3]:

The European law of torture... was one of the worst blunders in the administration of justice in all of Western history... The abiding lesson is that coercion is the enemy of truth, and that efforts to tolerate and regulate coercion in the service of truth have routinely failed across the ages.

 

Most recently Phillippe Sands has written a book that thoroughly explores the history of the “torture memos” in the Bush administration, especially those generated with the approval of Donald Rumsfeld and his team of lawyers. It will be a valuable resource for future tribunals that will prosecute Americans who have resurrected and sanctioned torture for crimes against humanity^[4].

Perhaps the most disheartening part of the story about the American use of torture in the first years of the twenty-first century is the pervasive silence of American churches. Religious leaders in the United States seem to suffer from the same moral blindness on this issue as their political leaders^[5].

The United States Department of Justice has continued to produce secret memos that reportedly defend harsh (“enhanced”) interrogation techniques. Journalists are reporting more about the atrocities committed at Abu Ghraib and elsewhere^[6]. If Jeremy Waldron had known of the legal opinions produced in 2005 and testimony to Congress in 2008 by Steven G. Bradbury he would have included him in his list of shame. Public opprobrium and a mantle of shame, however, do not seem to deter American advocates of torture. In January of 2008 the Bush administration continued to push for Bradbury’s elevation to the post of chief of the Justice Department’s Office of Legal Counsel^[7]. Shortly afterwards yet another of the Bush administration’s Attorneys General has declared that he and the president might declare torture legal under certain circumstances^[8]. Finally, Michael Hayden, the director of the Central Intelligence Agency, confirmed the worst kept secret in Washington that the United States had tortured “only three detainees” with waterboarding^[9]. Those people who believed that number were offered free season passes to Disney Land^[10]. An American president and his attorneys general, law professors and judges are only the latest who could be inscribed on Alessandro Manzoni’s (1785-1873) Column of Infamy, the Italian novelist’s passionate attack on Milanese judges who had tortured innocent victims illegally^[11].

Fear has played a key role in the history of torture. It has provided reasons to torture and has defined what is torture. In the United States, fear, especially of the ticking bomb scenario, has many devoted disciples. Long before American politicians began to use fear as a weapon of thought control Judith Shklar worried about government’s using “acute fear” to oppress their people^[12]. The American president, attorneys general, and other members of the government have used fear as a central argument to defend its use of torture against the prisoners it holds. “Fear” in this sense of the word is a general concept without much precision. The Roman jurists were the first to develop sophisticated definitions of fear in law, and they applied their understanding of fear to many different legal problems. Their thought shaped medieval and early modern conceptions of torture. Fear has inspired the use of torture; fear also has played a role in historical discussions of torture.

I shall make the following points in this essay. 1. Torture has always had a shabby reputation and has never been trusted as a reliable method of obtaining evidence from the very beginnings of its appearance in jurisprudence. 2. Fear of torture has been considered torture for almost 700 years. 3. Torture has always been limited in every legal system that has used it lawfully. 4. The courts have generally used torture to confirm evidence, not to produce evidence. 5. Lastly, people who are ignorant of torture’s history, jurisprudence, and practice have drafted treaties, written memos, and approved its use against other human beings. I will argue that the history of torture provides much evidence that it is a fatally flawed procedure for producing evidence that can be used in the courtroom. We should be morally outraged by a government that permits torture and by a judicial system or government agency that uses torture. However, an equally strong argument can be made against torture on practical grounds. After centuries of practice, jurists who had seen and lived with torture in the judicial system decided that it just did not work.

Torture has long been seen as barbaric practice. Whenever people have thought about its origins, they have been convinced that its creators must have been evil. A thirteenth-century commentator on Dante’s Commedia, Jacobus della Lana, named Tarquinius Superbus, the tyrannical last king of Rome, the inventor of torture, and Albericus de Rosate († 1360) canonized the claim in his commentary on the section of Justinian’s Digest devoted to torture. Jurists in the sixteenth and seventeenth centuries were happy to repeat the story^[13]. The Romans accused Tarquinius of many crimes, but they never accused him of inventing torture.

Although the Greeks employed torture, they had no jurisprudence that discussed torture. Consequently, any attempt to examine the history of torture must begin with Roman jurisprudence. As Americans have done today, the Romans tortured people to defend the state.  In cases of treason torture was always permitted during the empire.  It was also used to preserve the virtue and honor of the Roman family.  Although free men could be tortured only when they plotted treason, slaves could be tortured to uncover the sexual crimes of their mistresses (as well as for other crimes). However, the Romans did not use torture indiscriminately. They established limits to its use.

From the first century before the Common Era, Roman jurists began to struggle with the questions that have been repeated through the centuries. What is torture? Can torture provide reliable information? Ancient Roman jurists were the first to understand that fear was an important element that defined torture. Two words were most commonly used for torture: “quaestio” and “tormentum”. Sometimes the term “quaestio tormentis” was employed to distinguish “quaestio” from its more general meaning “to investigate <a crime>”^[14]. In a passage in Justinian’s Digest Ulpian defined torture^[15]:

 

We ought to understand “quaestio” as “tormenta” (tortures) when the body is subjected to pain in order to discover the truth. Questioning persons and subjecting them to trivial fear are not covered by this edict. The word “quaestio” also encompasses what they call terrible confinements (mala mansio). When a person is questioned with force and torture, this is understood to be “quaestio”.

 

The Roman jurists were careful to calibrate what constituted fear (formido, metus, pavor, timor, territio, or trepidatio) and created the first jurisprudence of terror. “Metus” was the word they most often used in legal texts. They considered fear in many areas of law. The Praetorian Edict in its final form declared that “I will not hold valid what has been done because of fear”^[16]. In the second century Gaius defined fear as “not being what a person without sound judgment might feel but what could have an effect on a person of the most resolute behavior (homo constantissimus)”^[17]. The “homo constans” or “homo diligens” had slightly different meanings depending on the area of law^[18]. In general the jurists used it to describe an adult male whose judgment was grounded in maturity and reason. Gaius emphasized that the reasonable man was not simply a “stable person” but the “most stable person”. The fear of torture, in other words, was not that which was felt by the faint-hearted or even the average person. The “heroic” person must fear the threat.

Ulpian’s “mala mansio” provides some insight into Roman thinking about the treatment of those accused of serious crimes. Although “mala mansio” has been defined by some scholars as an instrument of torture ― a place can be an instrument of torture^[19] ― the only other text in the Digest where the term is used seems to consider it a place and distinguish it from the means by which the captive was held^[20]. The Romans were aware, in other words, that imprisonment could be a form of torture. In 320 the Emperor Constantine issued a statute that laid down principles for the treatment of defendants who have been confined. He began by focusing on the rights of defendants to a quick trial^[21]:

 

When a defendant has been produced publicly in any case, whether the accuser brought him or whether public authorities produced him, the criminal court should hear his case immediately. If he is guilty, he may be punished, and if he is innocent, he may be freed.

 

In the same statute Constantine established norms for imprisonment. If it were necessary to bind defendants with chains because of the seriousness of the accusation they should be of sufficient length that they do not suffer. There should not be any suffering in prison; rather confinement should be secure^[22]. Defendants should never be kept in places that are dark and without light. On the contrary prisoners have a right to the light of the sun. Constantine emphasized that no one should die in custody, especially since the prisoner might be innocent^[23]. Jailers cannot sell their services to accusers by delaying hearings or letting their charges suffer from illness^[24]. Judges who fail to punish jailers who commit these crimes will not only lose their reputations but will confront the “fear of danger”^[25].

The Romans famously used torture, but they limited its use in judicial proceedings. Free Romans could not be tortured except for very serious crimes^[26]. Further, from the beginning the jurists were skeptical of its effectiveness. In the third century Ulpian expressed his doubts about torture in a passage that Justinian’s jurists included in the Digest^[27]:

 

It is stated in our constitutions that trust should not always be given to torture, but torture should not always be rejected. Torture is a weak and dangerous thing that may fail the truth. Many people have the patience and endurance to be contemptuous of torture. The truth can never be extracted from them. Others have so little patience that they would rather tell any kind of lie than suffer torture. They confess to anything by implicating themselves and others in crimes.

 

The Roman jurists’ ideas about torture are not of just antiquarian interest. They shaped European jurisprudence and thought until the eighteenth century. Ulpian's and Constantine’s texts became an integral part of the body of material that every law student studied from the twelfth century on. Students were reminded for centuries that torture was a “res fragilis et periculosa”; Ulpian’s lapidary conclusion about torture’s failures were repeated by the European jurists from Accursius to Bartolus to Beccaria^[28].

Doubts about torture can be found outside legal sources. Christian writers connected Pilate’s flagellation of Jesus with torture. Tertullian railed against the use of torture against Christians, but he condemned torture as a means to force Christians to recant, not as a judicial institution^[29]. Could a Christian judge torture? Bishop Exuperius of Toulouse wrote to Pope Innocent I (401-417) and asked what should be done with a baptized Christian who had tortured and executed defendants. Innocent responded that this question had not yet been answered by his predecessors. He concluded that since God had established the office of judge, a Christian could justly carry out the duties of his office, even if it meant torturing defendants and executing the guilty^[30].

In an overlooked passage St. Cyprian of Carthage (ca. 250 C.E.) connected torture with the injustices committed in Roman courts of law^[31]. He wrote a letter to his friend Donatus about the state of the Roman courts. If he were alive today his condemnation might have appeared in The New York Times^[32]. His main concerns were the courts’ and judges’ disregard of the fundamental principles of law and their condoning the use of torture. Cyprian told his friend that although he might expect to find that the courts were free from lawlessness and criminality, he would be wrong^[33]:

 

Even in the place where the Twelve Tables are engraved and statutes are displayed on brass tablets, crimes are committed against the laws, and the principles of justice are violated. Innocence is not preserved there where it should be defended.

 

Cyprian makes a distinction between “lex” and “ius” in this passage that is important and is not just an example of elegant variation. “Lex” was a particular mandate of the Roman civil law; “ius” was a far richer term. It had within its penumbras of meanings principles of Roman jurisprudence and justice.

Cyprian lamented that the Roman forum roared with the madness of litigation. The spear, the sword, and the executioner always stand there at the ready. He conjured a vision of a forum filled with tearing hooks (ungula), stretching racks (eculeus), and burning fires that torture the body in more places than the body has limbs^[34]. In the Roman courts no one fears the laws; no one fears the quaestor; no one fears the judge since the decision can be brought without fear. Among the guilty to be innocent has become a crime^[35].

Cyprian did not doubt torture; he abhorred it. St. Augustine (354-430) expanded upon Ulpian’s qualms about torture. In The City of God Augustine emphasized the danger that innocent people would be tortured^[36]:

 

Of the error of human judgments when the truth is hidden.

What shall I say of torture applied to the accused himself? He is tortured to discover whether he is guilty, so that, though innocent, he suffers a severe punishment for crime that is still doubtful, not because it is proved that he committed it, but because it is not known that he did not commit it. And through this ignorance of the judge, the innocent man suffers... And the judge thinks it not contrary to divine law that innocent witnesses are tortured in cases dealing with the crimes of others... or that the accused are put to the torture and, though innocent, make false confessions regarding themselves, and are punished; or that, though they be not condemned to die, they often die during the torture.

 

The Roman jurists thought that torture was to be used only on slaves or for particularly heinous crimes like treason and could be gauged by the amount of fear it produced. Torture was of uncertain value as an instrument for producing evidence. Cyprian and Augustine agreed that torture was fallible, immoral, and punished the innocent which led to even more evil.

Even though judicial torture might seem out of place in the world of the Germanic ordeal, it did not completely disappear during the early Middle Ages^[37]. At least some described the ordeal itself as torture^[38]. The ordeal gradually disappeared during the twelfth and early thirteenth centuries. Its place was taken by a mode of proof called the Ordo iudiciarius. The history of how the Romano-canonical process, the ordo iudiciarius, became the model for the courts of continental legal systems remains to be written. We can say with certainty that its roots predate the Fourth Lateran Council (1215 A.D.) that forbade clerical participation in the ordeal. From at least 1150 on, when the evidence becomes plentiful, church courts all over Europe had almost completely abandoned the ordeal as a mode of proof for deciding ecclesiastical cases. This fact is attested by the vast number of twelfth-century papal decretals that describe implicitly and sometimes explicitly the procedures of the ordo iudiciarius that were, by then, well established^[39].

The centralization of papal legislative and judicial power in the eleventh century had introduced far-reaching changes in how ecclesiastical justice functioned. The Dictatus papae of Pope Gregory VII stipulated that “no one shall dare to condemn one who appeals to the apostolic chair” (n. 20). Appeal from the decision of an ordeal the judgment of God was logically impossible. The inexorable logic of the pope's dictum demanded that the old systems of proof not be used. As the papal court became the court of last resort, ecclesiastical procedure had to adapt to a system of proof that was based on evidence. By the 1130s Pope Innocent II inveighed against bishops who hindered appeals to Rome and levied heavy fines if they obstructed litigants from appealing to Rome. Papal letters of the twelfth century pullulate with references to witnesses and their testimony. Sometime before 1133-1136, Bulgarus, the famous doctor of Roman law, wrote a short ordo that summarized the rules of procedure for Haimeric, the papal chancellor^[40].

In the twelfth century, the ordo iudiciarius was new and dangerous to local interests, usurping the authority of the community to render justice. The new procedure would not have been victorious if it had not offered better justice than the old system. By the second half of the twelfth century, criticism of one form of local justice, the ordeal, was prevalent and persuasive^[41]. Finally, the Fourth Lateran Council forbade clerical participation in the liturgy of the ordeal (c. 18). Paradoxically, at a time when some historians have seen medieval conceptions of due process rapidly being eroded by the introduction of torture and by a fierce determination of ecclesiastical and secular magistrates to eradicate crime, the jurists rethought the origins of the judicial process. As they did defendants' rights became a central issue. In the twelfth century the ordo iudiciarius was a mode of proof that demanded that there be an accuser. Judges or magistrates could not initiate an accusation. During the second half of the twelfth century the right of a bishop to investigate wrong-doing was gradually established in ecclesiastical courts. Innocent III established the legitimacy of this new procedure, the “inquisition (inquisitio),” in several decretal letters and gave it a permanent place in the ordo iudiciarius with the canon Qualiter et quando at the Fourth Lateran Council (c.8).

Scholars long believed that Innocent and his curia invented the inquisitorial procedure. Lotte Kéry has demonstrated (contra Trusen et alii) that prelates had been ordered to investigate (inquisitio veritatis) since the pontificate of Pope Alexander III (1159-1181)^[42]. By the end of the pontificate of Innocent III (1216) the obligation and the duty of bishops to prosecute clerical crimes had become firmly established as an important part of ecclesiastical procedure.

A signpost for the development of the inquisitorial procedure is the birth of an important maxim of criminal law, “publicae utilitatis intersit ne crimina remaneant impunita” (It is in the interest of the public good that crimes do not remain unpunished) during the pontificate of Pope Innocent III. “Ne crimina remaneant impunita” became a standard maxim of the Ius commune in the later Middle Ages. It was used by the jurists to signal the duty that princes and judges had to prosecute crime^[43].

The creation of the new “inquisition” raised questions about a procedure in which third parties brought accusations and in which judges began to play a more active role in prosecuting crime. It changed concepts of justice in European courts. It has been argued that the new inquisitorial procedure led to the general use of torture in judicial procedure in order to bring a full proof to the courtroom^[44]. To a certain extent, it seems true that the jurists gave the “common good” of people’s right to have criminals’ punished equal standing with the rights of the human person in criminal procedure. The “common good” justified torture and trumped a defendant’s presumption of innocence.

We do not know how or exactly when torture became an accepted part of the ordo iudiciarius^[45]. In canon law torture had always been prohibited, and Gratian (ca. 1140) left no doubt about its illegality in ecclesiastical courts^[46]. As will become clear in this essay, I believe that medieval and early modern jurists were always careful to limit torture in judicial proceedings. It never became an accepted and normal part of criminal law in every case. We do know that during the thirteenth century torture began to be employed as a means of obtaining evidence and confirming confessions. In the first half of the thirteenth centuries Italian city states began to regulate torture in their courts. By the 1220s some jurists had become sharply critical of judges who indiscriminately and unlawfully used torture in their courts without observing the strict rules governing when torture could be used and on whom torture could be applied. In the Italian city states, the jurists were particularly concerned to exempt citizens from torture and to define who could be tortured^[47]. With that said we have not much evidence about the use of torture in the thirteenth century. Until the surviving court records are explored we will not have much information about how practice conformed to theory. Only the court records of the Italian archives will reveal whether the strict limitations on torture in theory were observed in practice.

In 1241 the city-state of Vercelli promulgated a statute that “no man [citizen of Vercelli] is to be tortured”^[48]. A marginal gloss to this statute in the margin noted^[49]:

 

The podestà or rector is held to observe this law without exception or dispensation and to enforce its observance... The podestà or rector ought to swear an oath to uphold these provisions.

 

Fiorelli has studied the statutes of the Italian city-states and found that almost all of them had statutes that limited the use of torture on citizens of good reputation^[50]. Johannes Andreae († 1348) was a layman who taught canon law at Bologna and was, with Bartolus of Sassoferrato († 1357), the most influential jurist in the first half of the fourteenth century. He wrote glosses to the most important and most extensive treatise on procedure produced during the Middle Ages, Guillielmus Durantis’ Speculum iudiciale (ca. 1291). He noted that the statutes of the city-states prohibited torture unless there were grave presumptions of guilt (violentae praesumptiones)^[51]. Johannes’ generalization was supported by the statutes of Bologna that were promulgated in 1288. The people of Bologna (populus Bononie) who belonged to a guild or who had membership because of a privilege, statute, ordinance, decree or statute could not be tortured without legitimate proofs (legittime probationes) or grave presumptions (violentae presumptiones) or clear and obvious evidence (manifesta indicia)^[52]. The Captain of the People had to examine the evidence and approve the use of torture in the presence of one of the defendant’s family, six “anziani (elders)” or consuls. Four officials of the commune should hear the confessions extracted under torture and a notary must be present to record them in writing. Without these safeguards, the statute concluded, torture could not be used. If these provisions were violated the podestà would be condemned to pay 1000 Bolognese pounds. He would also be thrown out of the government^[53].

In the Southern Italian Norman kingdom (Regno), Emperor Frederick II was the first to legislate the use of torture in some detail, although he was not the first medieval ruler to deal with torture in his Constitutiones that honor seems to have gone to the city-state of Verona in 1228^[54]. He published a constitution in 1231 in a title of his legal code that dealt with crimes committed secretly^[55]:

 

If from a judge’s investigation base persons are accused of homicide, although a full proof was not produced against any of them, we decree that these base and servile persons should be subjected to torture. If through these measures the court cannot establish the guilt of the persons because strong persons who undergo the great and accustomed power of torture do not confess or because of their weakness, as we know often happens, the timid and fearful confess but do not repeat their confessions in court after having been taken away from the torture, which they do not fear to be repeated...

 

The jurists who drafted this statute adhered closely to the rules established by the ancient Roman jurists^[56]. Frederick echoed Ulpian’s doubts about the efficacy of torture. Only the lower classes of society could be tortured. He anticipated that the guilty persons would not be found, torture notwithstanding. If no one confessed to the crime his final depository clause in the statute fined the place in which the murder took place: the inhabitants must pay a fine of 100 gold augustales if a Christian had been murdered; 50 if a Moslem or a Jew. If torture did not work to bring criminals to justice, he punished the entire community and among them, the innocent. Collective guilt and punishing the innocent were not alien to medieval legal and theological thought^[57].

Later jurists and kings of the Regno left a paper trail on torture that stretches into the late Middle Ages. In the sixteenth century Jacobus Anellus de Bottis, a Neapolitan royal counselor wrote that Frederick’s constitution was odious^[58]. Earlier, Andreas de Isernia († 1316) limited torture and its use significantly. Evidence of wrongdoing was required before anyone could be tortured. If a person confessed to a crime under torture without there having been sufficient evidence that indicated his guilt, his confession was invalid and inadmissible in court, even if he confirmed his confession later when he was free from the threat of torture. Perseverance in his testimony cannot change an illegal act into a legal one^[59]. Andreas thought that if there were sufficient proof of guilt, the strength of those proofs should determine whether the defendant could be tortured more than once. “A good judge should take everything into consideration:” He must decide whether the defendant was strong or weak, the persuasiveness of the proofs, and the nature of the crime. If, however, there were doubts, the judge should be inclined to be milder, which is holier^[60]. King Charles II († 1309) issued legislation that confirmed all the points of Andreas’ gloss^[61]. He also established the right of appeal from a judge’s decision to torture a defendant^[62]. A judge and his officials could be condemned to death if a person died under torture without having been granted the right of appeal^[63]. King John († 1479) eliminated torture from the court completely. He promulgated a statute in which he declared that torture could only be carried out after the conclusion of a trial. No superior could grant a judge the right to torture persons unless the defendant had already been sentenced by the judgment of a court (torture as punishment was acceptable). The only exception was in a trial for treason. John may be the first European monarch who (almost) banned torture from the courtroom. In theory the courts of the Kingdom of the Two Sicilies torture could no longer provide evidence^[64].

Richard Fraher has written a series of articles on the connection between torture the inquisitorial procedure^[65]. He has vigorously pressed a thesis that both in theory and practice torture was used indiscriminately in the courts of the Ius commune from the thirteenth century on. The jurists, he has argued, were more concerned with punishing crimes than protecting the rights of defendants. In one essay he presented a late thirteenth-century jurist, Albertus Gandinus, as hell-bent on urging judges to use torture in their courts. Albertus, he said, “espoused an almost bloodthirsty enthusiasm” for torture^[66]. He advocated torturing defendants even though there was not any substantial proof they were guilty. Fraher came to this conclusion from Albertus’ treatise De maleficiis that circulated widely after it was finished ca. 1300^[67]. Albertus had posited a hypothetical in which a man of low birth was captured and accused of a crime. The question was whether the defendant could be tortured if there were only vague voices of “public report (fama) and clamor” that pointed towards his guilt. Albertus solved his hypothetical using the typical “sic et non” format that the jurists loved. Fraher took all of his evidence from the section of the treatise that argued that the judge could torture the defendant without sufficient proofs^[68]. Albertus, however, rendered his opinion not there but in his conclusion (solutio)^[69]. He argued that the defendant could only be tortured if there were witnesses who were prudent and honest, who presented concrete, specific evidence, and who did not represent a minority of the population but the “maior pars”. Further the defendants’ base reputation should have arisen before the crime had been committed, not after^[70].

If Fraher had read the section of Albertus’ treatise where the jurist discussed torture he would have also come to very different conclusions^[71]. At the beginning of the title on torture Albertus made five points: 1. a judge who intended to use torture had to consider the law and issues of humanity. If there were less cruel ways to discover the truth the judge must take them^[72]. 2. Not all crimes and not every reason should lead to torture; not all persons are subject to torture^[73]. 3. Not just any evidence produces a reason to torture. The evidence should be so strong that the only thing lacking is a confession^[74]. 4. Torture should never be repeated unless two things are present: new evidence and a person who is strong enough to endure a repetition of torture^[75]. 5. Torture should be moderate. The judge should not torture according to the demands of an accuser. The tortured person should remain healthy for either a decision declaring his innocence or for his punishment^[76].

Albertus also broached what must have been a new issue: whether the defendant had a right to appeal a judge’s decision that imposed torture by claiming that he had new evidence to present to the court. Albertus was unsure whether that was possible. There was no provision in Roman law for appealing a judge’s decision. He consulted Lambertus Ramponi, a distinguished Roman law professor (1269-1304) in Bologna^[77]. Lambertus told Albertus that an appeal could be made and referred to a text in the Digest that did not quite answer the question^[78]. Albertus concluded, with Lambertus’ concurrence, that a defense was always given priority “because if the defense was deferred until after torture, the defendant could never recover the damage to his limbs”^[79]. King Charles II’s legislation in Sicily that granted appeals from torture was promulgated about the same time as Albertus was writing his treatise (ca. 1290). The medieval jurists were shaping jurisprudence of torture and influencing legislation.

Albertus raised yet another question. Could a podestà torture a man who was accused of murder without any evidence of his guilt? And if he could, would the defendant’s confession constitute a full and valid confession that would permit his condemnation? His answer was a firm no^[80]. “What follows from an act lacking legitimacy cannot be valid”^[81]. Albertus turned then to a more subtle question^[82]:

But I pose the question here what of the confession made under the fear of torture? I think if <the facts of the case were>: the person to be tortured is led to the place of the torture, his hands are bound behind him, and the judge would say to him unless he confesses immediately he would torture him. In this case if he confesses the confession is not valid, unless he would persevere in his confession <in court>. The law holds such a confession extorted by fear to be the equivalent to one extracted by torture.

 

Albertus explored fear and torture. “What if,” he asked, “the person were led to the torture chamber, but his hands were not bound behind him, <is his confession valid>?” Although there were differing opinions, he thought the confession was not admissible in court^[83]. He posed another question to define exactly what constituted the fear in a reasonable man (homo constans)^[84]:

But what if outside the torture chamber the judge said, “either you confess or I shall lead you to be tortured,” trying to create as much terror in him as he could? The defendant confessed. Will it be said in this case that the confession was extorted by fear? I say no, because this was slight terror... we ought to interpret terror or fear of torture as a present and immediate <threat of torture>... Slight terror of torture outside the torture chamber is an illusory fact.

Albertus tried to calibrate the amount of fear that constitutes torture. His solution was to distinguish between “an imminent and apparent danger” of torture to use the terminology of current American criminal law and the mere threat of torture.

How did torture work in the real world, outside the handbooks of the jurists and the teachings of the classroom? We only have small windows into the torture chambers of Europe from the texts that have been published. Much more work has to be done. Although there were certainly rogue judges – the jurists mention them frequently – the evidence that we do have indicates that the norms established by the jurists of the Ius commune were observed^[85]. A case that Hermann Kantorowicz published from the Bolognese archives illustrates this point^[86]. In December 1299 Vecto, the criminal judge of the Podestà of Bologna, began an investigation of Mengho, son of Ugolino, who had been accused of robbing the store of a silk merchant. Vecto ordered a knight (miles) Lazario to conduct an investigation. On the 5th of December Lazario supervised the testimony of nine witnesses and had their testimony recorded. Some of them reported that Mengho was a robber and had a bad reputation. Others claimed that they thought that Mengho was good or that they did not know him. Several testified that Mengho was suspected of the crime. The evidence was, in other words, mixed.

On the same day Lazario and a notary searched Mengho’s house. They found four skeins of silk. It was identified as the stolen goods. Mengho was brought before Vecto at the bench for criminal offenses next to the new city hall in Bologna. Vecto questioned him about the evidence and the crime. The testimony of the witnesses was read to Mengho in Italian. He denied everything. On the 7th of December Mengho was tortured under the supervision of four magistrates and a notary. He confessed, and the notary recorded his confession. More goods were recovered. Once he had admitted to stealing the silk, Mengho confessed to numerous other crimes. On the same day, he confirmed his confessions before the court and judge Vecto. His confession added or subtracted nothing to the written report of the notary who had heard his confession under torture. Mengho persisted and persevered in his confession when he repeated it before the court. The stolen goods were returned to their owner. Mengho was condemned to the gallows and hanged.

This case illustrates many of the norms of inquisitorial criminal procedure in secular courts. The judge could order investigations on the authority of his office. He had the power to conduct searches and to summon witnesses for interrogation. If there were grave presumptions and evidence of guilt and if a defendant refused to confess, the defendant could be tortured to confirm his guilt that was already proven by the evidence. Torture, however, should be used only as a last resort, and should be preceded by powerful evidence of guilt in this case provided by the skeins of silk found in Mengho’s house. The conflicting testimony of the witnesses was probably not sufficient for torture, but the discovery of the silk in Mengho’s home gave Vecto the right to send Mengho to the torture chamber. As we have already seen, the norms of the Ius commune and the statutes of many Italian city states forbade indiscriminate and arbitrary torture without evidence that created a grave presumption of guilt.

Modern scholars have doubted that the limitations that the jurists imposed on the use of torture had much effect in practice. However, there is growing evidence that European criminal courts used torture sparingly. Kantorowicz published the records of ca. 143 criminal cases from the Bolognese archives between 1284 and 1299. Of these he found evidence of torture in four cases^[87]. In his study of criminal inquests in Marseille, Daniel Smail found one case of torture in 83 fourteenth-century inquests and no evidence of torture in “several dozen surviving cases of criminal appeals”^[88]. Steven Bednarski has examined over 1500 criminal inquests between 1340 and 1403 in the small Provençal town of Manosque. He discovered only four cases in which the defendants were tortured – and all four were foreigners^[89]. In Northern France, Claude Gauvard’s examination of fifteenth-century court records of the Parlement of Paris and the Châtelet of Paris revealed that torture was used twenty times in 600 cases^[90]. Langbein has listed 81 cases of torture in England between 1540 and 1640 but gives no evidence about what percentage these cases might represent^[91]. Richard Mowery Andrews has pointed out the after the Ordonnance criminelle of 1670 torture almost disappeared from French judicial procedure^[92]. This evidence should begin to give pause to those scholars who have claimed that inquisitorial procedure and the standard of proof in the Ius commune inevitably led to the use of torture in the courts^[93]. Or that even more benighted idea, torture replaced the ordeal in medieval courts^[94].

Baldus de Ubaldis († 1400) underlined the importance of evidence when he discussed a cause célèbre of the late fourteenth century^[95]. The Queen of Aragon, Sibílla Fortià, had been married to Pedro IV (1336-1387) and was the stepmother of Pedro’s son, Juan I (1387-1395). Juan entertained doubts about Sibílla and soon after he ascended the throne brought her to trial for practicing black magic that he said affected his health^[96]. The case must have attracted attention far outside Aragon because Baldus was commissioned to write a consilium about the legality of how Sibílla was treated by the court^[97].

The case was perfect for the international gossip trade. Her stepson was reputed to be effete and profligate; Sibílla was endowed, it was thought, with magical powers. Her crimes were not only sorcery but also treason. The first question that Baldus raised was whether a queen could be tortured. He rehearsed the legal norms with which we are already familiar. No one could be tortured without firm evidence (indicia certa) whose authenticity cannot be doubted^[98]. He quoted the Moslem philosopher Averroës: “to seek reason when we have knowledge is an infirmity of intelligence;” if there were full proofs of guilt, torture was unnecessary^[99]. Baldus thought that Sibílla had confessed because of torture or from “probable and necessary fear” of torture. As soon as she was free from torture and fear, she recanted her confession. The confession was not valid unless she had repeated it when there was not the terror of torture^[100]. Baldus quoted a Christian theologian: “As Albertus Magnus said, a free person must have a free mind and a free tongue”^[101]. What constitutes just fear? Baldus asked. “A just fear is to be afraid of the cruelty or the criminal (capitalis) hostility of a powerful person... Fear and extortion arise from a just reason for fearing”^[102]. Baldus’ solution to whether Sibílla should have been tortured reflects his well-known fear of offending princes especially his own^[103]. “The matter should be left to the conscience of the king who should take counsel with the saints and learned men who fear God. If he does otherwise he sins enormously”^[104]. In the second half of his consilium Baldus did make the point that even nobles could be tortured if they practiced magic^[105]. If the prosecutors of Sibílla adhered to the rules of the late thirteenth-century Castillian codification, Las siete partidas covering the law of torture, they would have followed the norms (with a few exceptions) of the Ius commune^[106].

The most important criminal lawyer of the medieval and early modern period was undoubtedly Prospero Farinacci (1544-1618). He was probably educated in Perugia and quickly gained experience on both sides of the bench. In 1567 he became the general commissioner in the service of the Orsini of Bracciano; the next year he took up residence in Rome as a member of the papal camera. However, in 1570 he was imprisoned for an unknown crime. Legal problems hounded him for the rest of his life. He lost an eye in a fight, was stripped of his positions, and was even accused of sodomy^[107]. In spite of his difficulties, Pope Clement VIII reinstated him to the papal court in 1596. Farinacci defended Beatrice Cenci who was accused of killing her father in the most famous criminal case of the time^[108]. He began his most important work, Praxis et theorica criminalis, in 1581 and put the finishing touches on it by 1601^[109].

Farinacci wrote extensively about torture and the rules governing its application, summing up the three centuries of jurisprudence governing the use of torture by judges in the courtroom. He repeated the standard norm that the evidence establishing the judge’s right to torture a person must be legitimate, probable, grave, and sufficient. The judge must be almost certain of the person’s guilt before he could order torture. He repeated the condemnation of many earlier jurists that judges were too ready to torture. “Princes,” he proclaimed, “should not tolerate those evil judges”^[110]. The proofs necessary to torture should be grave, urgent, certain, clear, but even clearer than the light at midday. The judge should be almost certain (quasi certus) of the defendant’s guilt that nothing was lacking except a confession^[111]. Without substantial evidence the judge was very limited in what he could do to a defendant. He could not torture the defendant. He could not even frighten him. Fear of torture was, he argued, the same as torture. If the defendant was bound or stripped as if he were to be tortured, that was torture. If a judge acted contrary to the rules, the defendant’s confession was not valid^[112]. If a man were wise and accustomed to prison the judge could terrorize him outside the courtroom, but if the defendant were base and timid and not accustomed to prison, then the judge could not^[113]. A judge who violated the rights of defendants without legitimate evidence or who tortured defendants savagely was liable for judgment and must be punished^[114]. If a judge decided that defendants should be tortured, he must permit them to provide a defense. They must be given the evidence against them^[115]. Judges who thought that the evidence was sufficient to torture must render an interlocutory judgment from which the defendant could appeal. Farinacci condemned those blood thirsty judges who did not render the interlocutory sentence in order to proceed directly to the torture chamber. The judge must include all the reasons why he thought the evidence was sufficient for torturing the defendant^[116]. The defendant could appeal from a decree of torture and even from the threat of torture. After an appeal from his decree or threat of torture, the judge’s hands were bound. He could do nothing^[117]. A confession extorted from a defendant by torture after an appeal was invalid^[118]. Finally, Farinacci defined three grades of torture: 1. fear of torture, 2. the defendant is bound and raised (La corda), and 3. the defendant is bound, raised, and beaten^[119].

Perhaps the most misunderstood norm of inquisitorial procedure is when and whether torture was used in the court. As we have seen the jurists thought that a person could be tortured only if the evidence was, as Farinacci put it, almost certain (quasi certus) ^[120]. A number of scholars have put forward the theory that inquisitorial judges were forced to torture in cases when the defendant had not confessed because a confession was necessary for a full proof if there had not been two witnesses^[121]. Recently James Q. Whitman has joined that camp of scholars when he completely misread Farinacci’s views on when a judge could torture. Whitman cites a text of Farinacci out of context to argue that even with “proofs permitting no doubt” a judge could deliver a defendant to torture^[122]. As we have seen Baldus rejected that idea two centuries before; it is no surprise that Farinacci also firmly rejected the idea that a judge could torture a defendant even when he had indisputable evidence of guilt^[123].

There had been a long tradition in the Ius commune that some people were exempt from torture, especially knights, minors, pregnant women, and nobles. Farinacci repeated the traditional teaching^[124]. However, the nobility could be tortured with the permission of the prince. Nonetheless, even with his “absolute power,” the prince could not permit judges to torture people without adequate proofs of guilt^[125]. Just as the prince could not take away a defendant’s rights of due process, Farinacci argued that the prince’s “absolute power” would not permit him to violate the norm that defendants could not be tortured without sufficient proofs. If judges were to obey princely orders to torture without having sufficient proofs, they will be brought to trial for their crime^[126]. Even the pope was limited by these norms of the Ius commune. Farinacci cleverly interpreted a letter of Pope Sixtus V (1585-1590) to the judges in the Papal States to vitiate what might have been the pope’s intention. Judges who obeyed the orders of the prince to torture were subject to a penalty that fitted the circumstances of the crime (poena extraordinaria)^[127].

At the height of his career Farinacci became involved in the most famous criminal case of the early modern period in Rome, the trial of Beatrice Cenci for the murder of her father, Francesco Cenci^[128]. Beatrice, her lover, Olimpio Calvetti, her brothers, Giacomo and Bernardo, and a local peasant, Marzio Catalano were all involved in the plot. The facts were simple. Beatrice and her mother Lucrezia had been virtually imprisoned against their wills in the Cenci fortress Rocca della Petrilla a few miles from Rieti. Beatrice hatched a plot to kill her father. On September 9, 1598 Olimpio, Marzio and Beatrice went into Francesco’s room, beat him, and threw him out the window. They concocted a story that he fell from his window, but the blood on Francesco’s sheets and bed convinced authorities otherwise. They were brought to trial in February 1599. In the meantime Olimpio, who had fled, was murdered. The trial dragged on and the evidence was not conclusive. Finally Pope Clement VIII, 5 August, 1599, issued a bull permitting the torture of Lucrezia (as a witness), Beatrice, Giacomo, and Bernardo. Torture quickly brought confessions. Giacomo was tortured with La corda on the 7th August, 1599 for one "Credo" and confessed in the first session. On 9 August, 1599, Lucrezia was tortured with the La corda and confessed that Beatrice and Olimpio were responsible; Giacomo knew everything. Bernardo was too young to be tortured but the pope’s letter put him in the torture chamber as well. Finally on 10 August, 1599, Beatrice was tortured with the La corda for the time that it took to recite an “Ave Maria”. In the records of the trial she is supposed to have cried out: “Oimé, Oimé o Madonna santissima ajutame. Calateme che voglio dire la verità”. She made a full confession. Prospero Farinacci became Beatrice’s attorney, but he did not have much upon which he could build a defense. Beatrice met her lawyer on 10 August, 1599. He tried to construct a defense around Francesco’s brutal treatment and even his purported incestuous advances against Beatrice. But there was too little evidence. On 11 September 1599 Beatrice, Giacomo and Lucrezia were beheaded. Probably because Bernardo was only twelve, he was sent to the galleys. The papacy confiscated all the Cenci properties.

The trial conformed to the norms of the Ius commune. The Cenci were one of Rome’s most ancient families. They could not be tortured. There were no witnesses to the crime, and the evidence against them was circumstantial. Further, Francesco had a brutal reputation and many enemies. The evidence might have been enough to convict them in a modern courtroom in some cases. However, only the prince’s mandate to permit torture provided the proof that the court needed politically to condemn them. The trial would have very likely been different if the defendants had not been members of the nobility. The evidence, although circumstantial, was quite strong. Angelus Aretinus de Gambilionibus († 1461) described a case in his tract De maleficiis in which an assault without witnesses but with much circumstantial evidence was classified as “indicia indubitata”^[129]. Since the thirteenth century jurists had created hypothetical cases to illustrate how evidence should be interpreted. Although their opinions varied, they did grant that “indicia” did not need to be only from direct eye witnesses^[130]. If Beatrice had not been a Cenci, I suspect that she would have been condemned without torture.

By 1600 jurists and theologians were beginning to question torture’s morality and legality. Mathias Schmoeckel has recently constructed a Column of Honor for those who began to condemn torture in the early modern world, long before Beccaria and Verri^[131]. He ordains Juan Luis Vives (1493-1540) as the first to speak out against the use of torture in his Epistola to Erasmus. Later in the century Michel de Montaigne (1533-1592) was inscribed on the Column^[132]. In the seventeenth century Johannes Grevius (de Greve ca. 1580-1630)^[133], Friedrich von Spee (1632)^[134], and Augustin Nicolas (1682) raised their voices in protest^[135].

There might be another story about the gradual revulsion against torture. Lisa Silverman has studied the court records in Toulouse and found that from 1600 to 1780 the Parlement of Toulouse used torture less and less frequently^[136]. Judges might have been voting with their feet, but more work on the records of the courts must be done to know whether courts began to abandon torture before legislatures and princes began to ban torture from the courtroom and from their states in the eighteenth century^[137].

What can history teach us about torture? History can teach us, because we seem to have forgotten, a number of truths that are not “res fragiles et periculosae”. Torture has long been considered unreliable. Every judge and jurist who got a law degree from 1100 to ca. 1700 had to ponder the third-century Roman jurist Ulpian’s words: “It is stated in our constitutions that trust should not always be given to torture, but torture should not always be rejected. Torture is a weak and dangerous thing that may fail the truth”^[138]. As their thought about torture evolved, they began to focus much more on Ulpian’s second sentence than on his acceptance of judicial torture in the first. Even when it was a part of the judicial process jurists did not think that it was an effective method of extracting information. From ancient Rome, to the medieval and early modern courts of the Ius commune, the jurists created a jurisprudence that limited the use of torture^[139]. The evidence from the past is overwhelming that judges and jurists concluded that torture might be of some value for confirming what they already knew but was a very poor means of gathering new information. Did the jurists protest the use of torture in the courts? There is no evidence of it. In the end, however, jurists insisted that torture was inhumane, and, most importantly, did not produce reliable evidence. Beginning in the fifteenth century they began to argue for its abolishment. The success that Cesare Beccaria (1738-1794), Pietro Verri (1728-1797), and others had in the eighteenth century when they battled for the abolition of torture was prepared by centuries of debate in the classroom, in law books, in the courtroom, and in the chambers of parliaments^[140].

The current American administration believes that the international law and treaties governing what is and what is not torture are vague. As we have seen, the norms and definitions are vague only if one is ignorant of two thousand years of jurisprudence^[141]. In words not befitting the president of the United States, George W. Bush has repeated the ideas of his advisors^[142]. If one looks at the two main international documents upon which the law of torture is based, we notice one thing immediately. These documents ignore two types of torture that the jurists had unanimously defined as torture for centuries: the fear and the threat of torture. Torture is pain and suffering, but jurists have known and had long argued that torture was much more than just the physical pain the torturer inflicts on human beings. The most important international norms are the Geneva Convention and the Convention against Torture^[143]:

 

Geneva Convention 3 relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

 

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted December 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85

PART I Article 1

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

 

If these United Nations documents had been as clear about what was and what was not torture as Prospero Farinacci and his predecessors had been, we might have be saved from some of the humiliation that we have endured during the past six years.

Perhaps the most important conclusion that we can draw from the jurists of the past is that they thought of judicial torture only as a method of confirming evidence, not producing it. From the ancient Roman jurists to Prospero Farinacci no jurist who had actually witnessed torture argued that it could produce reliable information by itself. That is the reason they put so much emphasis on having a strong presumption of guilt with convincing evidence before a defendant could be tortured. American misconceptions about the efficacy of torture seem to come from a lack of experience. The wonks who have shamed the United States seem to have learned most of what they know about torture from Jack Bauer^[144].

Alessandro Manzoni acknowledged the importance of knowing the history of torture 168 years ago. In the debate over the use of torture in criminal proceedings Manzoni had pointed out that Beccaria and Verri overemphasized the originality of their contributions to the intellectual arguments underpinning their condemnation of torture. Manzoni also thought they de-emphasized the contribution of earlier jurists. In particular Manzoni was troubled by Beccaria’s attack on Farinacci. As part of Manzoni’s account of a Milanese cause célèbre that I mentioned briefly at the beginning of this essay, he described how judges in Milan had sent several innocent men to the rack with almost no evidence of their guilt. He pointed out that Beccaria and Verri had seriously distorted the legal tradition when they emphasized the novelty of their own thought condemning torture^[145]:

From this evidence and from all we know of the practice of torture in their own time, one can undoubtedly conclude that the interpreters of criminal procedure left the theory and practice of torture much, but much, less barbarous than they found it. Of course it would be absurd to attribute this diminution of evil to one cause alone, but I think that among the many causes that it would be reasonable to count the repeated reproofs and warnings, renewed publicly, century after century, by jurists to whom it certainly can be granted a definite authority over the practice of the courts.

 

Manzoni had extraordinary insight into how the norms governing torture evolved in European jurisprudence. He understood the complicated dialectic through which jurists argued with, borrowed from, and added to the thought of their predecessors and, in their works, spoke across the centuries to their successors. He also understood that the arguments and thought of the jurists eventually penetrated into the rough and tumble of the courtroom and were heard in the chambers of parliaments. Is it too much to hope that those voices from the past might persuade an American president, the Supreme Court, the lawyers in the Justice Department, and a number of professors in elite American law schools that torture is an unacceptable evil? (One could also hope that they might also rediscover the universal norms of due process and habeas corpus with their equally strong and deep historical roots^[146]).   And that those people who formulated the policies condoning torture and those who carried them out should be prosecuted in American courts rather than only in foreign courts?  Time will tell.

Postscript.  In April 2009, as this essay went to press, President Barack Obama released memos written by Jay Bybee, John Yoo, and others describing in detail the barbaric methods that Central Intelligence Agents could use on prisoners.  At a news conference on April 29, 2009, President Obama stated that the procedures in these memos constituted torture.  He has not yet taken the next logical step of prosecuting the enablers of torture in the United States Government criminally.