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.

[1] The last systematic use of torture, the “water cure,” and a defense of its use by American politicians and the government was during the conquest of the Philippines, see Paul Kramer, ‘The Water Cure: Debating Torture and Counterinsurgency A Century Ago’, The New Yorker (Feb. 25, 2008) 38-43, an essay that is based on his book, The Blood of Government: Race, Empire, the United States and the Philippines (Chapel Hill 2006) 140-150.

[2] Cited by Jeremy Waldron, ‘Torture and Positive Law: Jurisprudence for the White House’, Columbia Law Review 105 (2005) 1684-1685. Besides Waldron, other American jurists have spoken out forcefully against torture. See the special issue of the Case Western Reserve Journal of International Law 37 (2006) that was devoted to essays on American torture since 2002. The Yoo memo of March 14, 2003 was released in April 2008.

[3] Torture and the Law of Proof: Europe and England in the Ancien Régime (Chicago-London 1976, reprinted 2006) with a new prologue from which this quote was taken on p.xii. A fine general survey of torture is Edward Peters, Torture (Philadelphia 1985, Expanded Edition 1996). I could fill this essay with quotations from the works of people who have condemned torture; I will add one more from a Frenchman, whose country also practiced torture in the twentieth century (see Peters, Torture 105-106, 177-184), Jean-Phillipe Lévy, ‘La torture dans le droit romain de la preuve’, Collatio iuris romani: Études dédiées à Hans Ankum a l’occasion de son 65e anniversaire, ed. Robert Feenstra et al. (Studia Amstelodamensia ad epigraphicam, ius antiquum et papyrologicam pertinentia, 35A-35B; Amsterdam 1995) 1.241-255, at 241: “Bien qu’elle ne soit, ou plus, tout à fait étrangère à nos moeurs, la torture judiciare, de nos jours, est tout à fait contraire à nos idées. Le plus grave reproche qu’on lui adresse est sa cruauté, son sadisme, son atteinte révoltante à la dignité de la personne humaine. Si le droit en parle, c’est pour l’interdire”.

[4] Philippe Sands, Torture Team: Rumfeld’s Memo and the Betrayal of Amercian Values (New York-Houndmills 2008).

[5] The Catholic Church accepted the arguments of the Catholic jurists against the use of torture that I will detail in this essay when Pope Pius VII abolished torture from inquisitorial procedure in all tribunals after he had established a short-lived revival of the Spanish Inquisition in 1816, see Jean Antoine Llorente (Juan Antonio Llorente), The History of the Inquisition of Spain from the Time of its Establishment to the Reign of Ferdinand VII (London 1826) 572-573. See also the reflections of Jeremy Waldron,  “The Injury Done by Christian Silence to Public Debate over America’s Use of Torture,”  Journal of Law, Philosophy and Culture 2 (2008) 1-22.

[6] New Yorker, March 24, 2008, “Exposure” by Philip Gourevitch and Errol Morris, pp. 44-57.

[7] New York Times, January 24, 2008, p. A18. In the February 17, 2008 Washington Post, p. A.3, it was reported that Bradbury claimed American waterboarding was not as severe as water torture used during the Spanish Inquisition. American waterboarding was not torture because “although frightening,” it did not “cause enough severe and lasting pain”.
[8] Ibid. January 30, 2008, p. A11: In this article Michael B. Mukasey “suggested that waterboarding might be reintroduced under the ‘defined process by which any new method is proposed for authorization’ in the C.I.A.’s interrogation program. ‘That process would begin with the C.I.A. director’s determination that the addition of the technique was required for the program... Then the attorney general would have to determine that the use of the technique is lawful under the particular conditions and circumstances proposed. Finally the president would have to approve of the use of the technique’”.

[9] Washington Post, February 8, 2008, A18. The release of a secret Red Cross report in March, 2009, definitively proved that torture was pervasive; see Mark Danner, “US Torture:  Voices from the Black Sites,”  The New York Review of Books 56 (April 9, 2009) 69-77.  Hayden somehow neglected to mention that these three prisioners were tortured hundreds of times. In April, 2009 the Obama administration released memoranda verifying that waterboarding was used 266 times on two captives (New York Times, April 21, 2009, A1).

[10] Morris Davis, chief military prosecutor at Guantánamo, wrote in the New York Times, February 17, 2008, Opinion, p. 12, that he resigned from his post because he wanted evidence obtained from waterboarding excluded from the trials before military tribunals. He was overruled by the Bush administration. According to the Washington Post, March 14, 2008, A 3, Muhammad Rahim was released from a secret CIA prison and sent to Guantanamo after having been interrogated. The director of the CIA refused to say how he was questioned. The CIA refused to tell how many more prisoners were in their custody.
[11] Storia della colonna infame, Edizione accresciuta dalle Osservazioni sulla tortura di Pietro Verri (F. Garofalo, Palermo 1843).
[12] Judith N.Shklar, ‘The Liberalism of Fear’, Liberalism and the Moral Life (Cambridge, Mass. 1989) 21-27, cited by Waldron, ‘Torture’ 1742. Michel Foucault also has emphasized fear as an instrument of repression.
[13] Piero Fiorelli, La tortura giudiziaria nel diritto comune (Ius Nostrum 1; 2 vols. Milan 1953-1954) 1.2. The literature on torture is large. Fiorelli’s book is the most detailed history of the subject.
[14] Gaius, Institutes 1.13.
[15] Dig. Ulpianus 77 ad ed. “ ‘Quaestionem’ intellegere debemus tormenta et corporis dolorem ad eruendam veritatem. Nuda ergo interrogatio vel levis territio non pertinet ad hoc edictum. Quaestionis verbo etiam ea, quam malam mansionem dicunt, continebitur. Cum igitur per vim et tormenta habita quaestio est, tunc quaestio intellegitur”. On the Romans use of torture see, Lévy, ‘La torture’ 1.241-255.
[16] Dig.4.2.1: “Ulpianus 11 ad ed. Ait praetor: ‘quod metus causa gestum erit, ratum non habebo.’ Olim ita edicebatur ‘quod vi metusve causa’; uis enim fiebat mentio propter necessitatem impositam contrariam voluntati: metus instantis vel futuri periculi causa mentis trepidatio. Sed postea detracta est vis mentio ideo, quia quodcumque vi atroci fit, id metu quoque fieri videtur”.
[17] Dig.4.2.6: “Gaius 4 ad ed. provinc. Metum autem non vani hominis, sed qui merito et in homine constantissimo cadat, ad hoc edictum pertinere dicemus”.
[18] Cf. e.g. Institutes 4.6.33.
[19] Adolf Berger, Encyclopedic Dictionary of Roman Law (Transactions of the American Philosophical Society 43; Philadelphia 1953) 575. The American military and Central Inelligence Agency have used containers and cells as torture since 2002.
[20] Dig.16.3.7pr.: “Ulpianus 30 ad ed. Si hominem apud se depositum ut quaestio de eo haberetur, ac propterea vinctum vel ad malam mansionem extensum sequester solverit misericordia ductus, dolo proximum esse quod factum est arbitror, quia cum sciret, cui rei pararetur, intempestive misericordiam exercuit, cum posset non suscipere talem causam quam decipere”. Fiorelli, La tortura 1.19, calls “mala mansio” “anguste celle”.
[21] Cod. 9.4.1-5: “Imperator Contantinus A. ad Florentium rationalem. In quacumque causa reo exhibito, sive accusator existat sive eum publicae sollicitudinis cura produxerit, statim debet quaestio fieri, ut noxius puniatur, innocens absolvatur. * const. a. ad florentium rationalem”. The statute was taken from the Codex Theodosianus 9.3.1.
[22] Ibid. “Interea vero exhibito non ferreas manicas et inhaerentes ossibus mitti oportet, sed prolixiores catenas, si criminis qualitas etiam catenarum acerbitatem postulaverit, ut et cruciatio desit et permaneat fida custodia”.
[23] Ibid. “Nec vero sedis intimae tenebras pati debebit inclusus, sed usurpata luce vegetari et, ubi nox geminaverit custodiam, vestibulis carcerum et salubribus locis recipi ac revertente iterum die ad primum solis ortum ilico ad publicum lumen educi, ne poenis carceris perimatur, quod innocentibus miserum, noxiis non satis severum esse dignoscitur”.
[24] Ibid. “Illud etiam observabitur, ut neque his qui stratorum funguntur officio neque ministris eorum liceat crudelitatem suam accusatoribus vendere et innocentes intra carcerum saepta leto dare aut subtractos audientiae longa tabe consumere”.
[25] Ibid. “Non enim existimationis tantum, sed etiam periculi metus iudici imminebit, si aliquem ultra debitum tempus inedia aut quocumque modo aliquis stratorum exhauserit, et non statim eum penes quem officium custodiae est atque eius ministros capitali poena subiecerit”. See Thomas Gulielmus Schade van Westrum, De cura quam Romani habuerunt carceris et eorum qui carcere contineretur (Lugduni Batavorum [Leiden] 1825) 100.
[26] Peters, Torture 18-36 and Fiorelli, La tortura 16-52 both discuss the classes of Roman society that were subject to and exempt from torture.
[27] Dig. “Quaestioni fidem non semper nec tamen numquam habendam constitutionibus declaratur: etenim res est fragilis et periculosa et quae veritatem fallat. Nam plerique patientia sive duritia tormentorum ita tormenta contemnunt, ut exprimi eis veritas nullo modo possit: alii tanta sunt impatientia, ut quodvis mentiri quam pati tormenta velint: ita fit, ut etiam vario modo fateantur, ut non tantum se, verum etiam alios criminentur”.
[28] Fiorelli, La tortura 1.215-216; 2.105-106, 120, 210, 253. Bartolus of Sassoferrato began his commentary on Ulpian’s passage by noting “Nota quod fragilis est confessio facta per tormenta”, Commentaria (Venice 1516) fol. 206rb. Bartolus thought that if someone was tortured about the crime of another the confession was more valid.
[29] Fiorelli, La tortura 24-52, especially 46-51. See also the comments of Mathias Schmoeckel, Humanität und Staatsraison: Die Abschaffung der Folter in Europa und die Entwicklung des gemeinen Strafprozeß- und Beweisrechts seit dem hohn Mittelalter (Norm und Struktur: Studien zum sozialen Wandel in Mittelalter und Früher Neuzeit, 14; Köln-Weimar-Wien 2000) 97.
[30] Lotte Kéry, Gottesfurcht und irdische Strafe: Der Beitrag des mittelalterlichen Kirchenrechts zur Entstehung des öffentlichen Strafrechts (Konflikt, Verbrechen und Sanktion in der Gesellschaft Alteuropas, 10; Köln-Weimar-Wien 2006) 335, JK 293, later included into Gratian’s Decretum, C.23 q.4 c.45. This text circulated widely in pre-Gratian collections. Linda Fowler-Magerl lists 24 collections that contain the decretal [Clavis canonum: Selected Canon Law Collections Before 1140 (Monumenta Germania Historica, Hilfsmittel 21. Hannover 2005)].
[31] This passage has, as far as I know, only been cited by Henry Chadwick, The Church in Ancient Society: From Galilee to Gregory the Great (Oxford History of the Christian Church; Oxford 2001) 145-146.
[32] The New York Times, February 2, 2008, p. A28: “To avoid accountability, his <Bush’s> administration has repeatedly sought early dismissal of lawsuits that might finally expose government misconduct, brandishing flimsy claims that going forward would put national security secrets at risk. The courts have been far too willing to go along. In cases involving serious allegations of kidnapping, torture and unlawful domestic eavesdropping, judges have blocked plaintiffs from pursuing their claims without taking a hard look at the government’s basis for invoking the so-called state secrets privilege: its insistence that revealing certain documents or other evidence would endanger the nation’s security. As a result, victims of serious abuse have been denied justice, fundamental rights have been violated and the constitutional system of checks and balances has been grievously undermined”.
[33] Cyprian, Sancti Cypriani episcopi opera, Ad Donatum, ed. M. Simonetti (Corpus Christianorum 3A; Turnholt 1976) 9: “Forum fortasse uideatur immune, quod ab iniuriis lacessentibus liberum nullis malorum contactibus polluatur... Incisae sint licet leges duodecim tabulis et publico aere praefixo iura proscripta sint inter leges ipsas delinquitur, inter iura peccatur, innocentia nec illic, ubi defenditur, reseruatur”.
[34] Ibid.: “Hasta illic et gladius et carnifex praesto est, ungula efodiens, eculeus extendens, ignis exurens, ad hominis corpus unum supplicia plura quam membra”. We do not know what “ungula” and “eculeus” were. Constantine decreed that magicians should be tortured with those devices if they were convicted but did not confess to their crime (Cod. 9.18.7). But he specifies this treatment as punishment not as torture.
[35] Ibid. “Nullus de legibus metus est, de quaestione, de iudice pauor nullus potest redimi non timetur. Esse iam inter nocentes innoxium crimen est”.
[36] De civitate Dei, Book 19, Chapter 6: “De errore humanorum iudiciorum, cum ueritas latet. Quid cum in sua causa quisque torquetur et, cum quaeritur utrum sit nocens, cruciatur et innocens luit pro incerto scelere certissimas poenas, non quia illud commisisse detegitur, sed quia non commisisse nescitur? Ac per hoc ignorantia iudicis plerumque est calamitas innocentis... hoc enim nefas esse non ducit, quod testes innocentes in causis torquentur alienis; quod hi, qui arguuntur, ui doloris plerumque superati et de se falsa confessi etiam puniuntur innocentes, cum iam torti fuerint innocentes; quod, etsi non morte puniantur, in ipsis uel ex ipsis tormentis plerumque moriuntur”.
[37] See Schmoeckel, Humanität 100-106, with detailed literature. Also Fiorelli, La tortura 1.114-120. For the use of the ordeal in ecclesiastical courts during the eleventh century, see Kéry, Gottesfurcht und irdische Strafe 200-218. Patrick Geary, ‘Judicial Violence and Torture in the Carolingian Empire’, Law and the Illicit in Medieval Europe, edd. Ruth Mazo Karras et al. (The Middle Ages; Philadelphia 2008) 79-88, puts forward the remarkable thesis, without a shred of evidence, that the ordeal replaced torture in the early Middle Ages.
[38] Fiorelli, La tortura 1.116-117: In the twelfth century the ordeal was equated with torture in the Exceptiones Petri, the Tübingen and Asburnham Law Books.
[39] The following paragraphs are based on Kenneth Pennington, The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley-Los Angeles-London 1993) 135-142 and ‘Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius’, Rivista internazionale di diritto comune 9 (1998) 9-47. For an ahistorical explanation of the decline of the ordeal that completely ignores the jurists’ intense interest in judicial procedure in the early twelfth century and the introduction of systematic appeals in the second half of the twelfth century, see James Q. Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (New Haven-London 2008), especially 54-59.

[40] Linda Fowler-Magerl, Ordo iudiciorum vel ordo iudiciarius (Repertorien zur Frühzeit der gelehrten Rechte, Ius commune, Sonderhefte 19; Frankfurt am Main 1984) 35-40 and Kenneth Pennington, ‘The “Big Bang”: Roman Law in the Early Twelfth-Century’, Rivista internazionale di diritto comune 18 (2007) 43-70, for the dating of Bulgarus’ treatise and for Pope Innocent II’s decretal. The most complete survey of the rules of procedure of the medieval “ordo iudiciarius” is Wiesław Litewski, Der römisch-kanonische Zivilprozeß nach den älteren ordines iudiciarii (2 Volumes; Kraków 1999).

[41] The classic study of this criticism is John Baldwin, ‘The Intellectual Preparation for the Canon of 1215 against Ordeals’, Speculum 36 (1961) 613-636.
[42] Lotte Kéry, “Inquisitio - denunciatio - exceptio: Möglichkeiten der Verfahrenseinleitung im Dekretalenrecht’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung 87 (2001) 226-268; Kéry, Gottesfurcht und irdische Strafe. Wilfried Trusen, ‘Die Inquisitonsprozeß: Seine historischen Grundlagen und frühen Formen’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kan. Abt. 74 (1988) 168-230 and “Das Verbot der Gottesurteile und der Inquisitionsprozeß: Zum Wandel des Strafverfahrens unter dem Einfluß des gelehrten Rechts im Spätmittelalter’, Sozialer Wandel im Mittelalter: Wahrnehmungsformen, Erklärungsmuster, Regelungsmechanismen, ed. Jürgen Miethke und Klaus Schreiner (Sigmaringen 1994) 235-247. Markus Hirte, Papst Innozenz III., das IV. Lateranum und die Strafverfahren gegen Kleriker: Eine registergestützte Untersuchung zur Entwicklung der Verfahrensarten zwischen 1198 und 1216 (Rothenburger Gespräche zur Strafrechtsgeschichte 5; Tübingen 2005), whose ideas are primarily based on the work of his Doktorvater, Günter Jerouschek, ‘ “Ne crimina remaneant impunita”: Auf daß Verbrechen nicht ungestraft bleiben: Überlegungen zur Begründung öffentlicher Strafverfolgung im Mittelalter’, Zeitschrift der Savingy-Stiftung für Rechtgeschichte, Kan. Abt. 89 (2003) 323-337; also published in Strafrechtsgeschichte an der Grenze des nächsten Jahrtausends, ed. Barna Mezey (Budapest 2003) 54-84.
[43] On the origins of the maxim “ne crimina remaneant impunita” see K. Pennington, “Innocent III and the Ius commune’, Grundlagen des Rechts: Festschrift für Peter Landau zum 65. Geburtstag, edd. Richard Helmholz, Paul Mikat, Jörg Müller, Michael Stolleis (Rechts- und Staatswissenschaftliche Veröffentlichungen der Görres-Gesellschaft, NF 91; Paderborn 2000) 352-354. Richard M. Fraher, ‘The Theoretical Justification for the New Criminal Law of the High Middle Ages. “Rei publicae interest, ne crimina remaneant impunita” ’, University of Illinois Law Review (1984) 577-595, was the first to signal the importance of this maxim for the development of inquisitorial procedure.
[44] Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford 1986) 141: “Inquisitorial procedure... created a court situation amenable to the torturing of subjects”. I do not agree with his conclusion that between “1200-1700 judicial torture fulfilled the same function as ordeals (p. 142)”. See my review of Bartlett in Journal of Ecclesiastical History 39 (1988) 263-266. Fiorelli, Langbein, and Trusen have made such generalizations; see Richard M. Fraher, ‘Conviction According to Conscience: The Medieval Jurists’ Debate Concerning Judicial Discretion and the Law of Proof’, Law and History Review 7 (1989) 23-88. Schmoeckel, Humanität 105-108, has given a slightly nuanced version of this common assumption, pointing out that torture probably never completely disappeared and that its use was not necessarily a consequence of inquisitorial procedure.
[45] Othmar Hageneder, ‘Zum ersten Zeugnis für die Anwendung der Folter in Deutschland’, Geschichte und ihre Quellen: Festschrift für Friedrich Hausmann zum 70. Geburtstag, ed. Günter Cerwinka and Reinhard Härtel (Graz 1987) 143-148. Langbein, Torture 3-17 and 45-49; Mirjan Damaska, ‘The Death of Legal Torture’, Yale Law Journal 87 (1978) 860-884; Richard Fraher, “‘Ut nullus describatur reus prius quam convincatur”: Presumption of Innocence in Medieval Canon Law’, Proceedings of the Sixth International Congress of Medieval Canon Law, edd. S. Kuttner and K. Pennington (Vatican City 1985) 493-506; Edward Peters, Destruction of the Flesh – Salvation of the Spirit: The Paradoxes of Torture in Medieval Christian Society’, The Devil, Heresy and Witchcraft in the Middle Ages: Essays in Honor of Jeffrey B. Russell, ed. Alberto Ferreiro (Leiden-New York-Köln 1998) 131-148; Jens Röhrkasten, ‘Die Folter in Rechtstheorie und Rechtswirklichkeit des englischen Spätmittelalters’, Vera lex historiae: Studien zu mittelalterlichen Quellens: Festschrift für Dietrich Kurze zu seinem 65. Geburtstag am 1. Januar 1993, ed. Stuart Jenks et al. (Köln 1993) 421-455. For a balanced and sophisticated reading, see Peters, Torture 44-62.
[46] C.15 q.6 d.a.c.1: “Quod vero confessio cruciatibus extorquenda non sit”. For Gratian’s treatment of torture see Fiorelli, La tortura 1.76-77.
[47] Pennington, Prince and the Law 42-44, where I discuss an early thirteenth-century anonymous jurist who condemned the unlawful use of torture.
[48] Statuta communis Vercellarum, ed. Giovambattista Adriani, Leges Municipales, (Historiae Patriae Monumenta 16; Torino 1876) 2.1224.
[49] Ibid.: “et potestas seu rector communis Vercellarum precise teneatur hoc capitulum attendere et observare et attendi et observari... Super quod quilibet potestas seu rector communis Vercell. iurare debeat”. See Pennington, The Prince and the Law 158-159.
[50] Fiorelli, La tortura 1.91-94. See Fraher’s comments on a Bolognese statute (that he attributes to Florence in his text) in ‘Preventing Crime in the High Middle Ages: The Medieval Lawyers’ Search for Deterrence’, Popes, Teachers, and the Canon Law in the Middle Ages: Festschrift for Brian Tierney, edd. S. Chodorow and J.R. Sweeney (Ithaca 1989) 212-233 at 230.
[51] Pennington, Prince and the Law 159 n. 158.
[52] Fraher, ‘Conviction According to Conscience’ 40-56, discusses the jurists’ definitions of “indicia”.
[53] Ibid. 159-160 n. 159-163.
[54] On the Verona statute see Fiorelli, La tortura 1.85-88; Peters, Torture 49.
[55] Die Konstitutionen Friedrichs II. für das Königreich Sizilien, ed. Wolfgang Stürner (Monumenta Germaniae Historica, Constitutiones et Acta Publica imperatorum et Regum, 2 Supplementum; Hannover 1996) 182, Book 1, title 28: “Quod si ex inquisitione ipsa leves persone alique de homicidio ipso notentur, licet per eam contra ipsos non probetur ad plenum, ad tormenta personarum ipsarum levium et vilium postremo decernimus descendendum... Per que omnia si de delicto constare non poterit, quod confiteri per nimiam forsan et solitam potentiam tormentorum intrepidi quibus ingeruntur tormenta non velint, vel si ob ipsorum impotentiam, prout accidere novimus in plerique, ultra modum timidi fateantur nec in confessione perdurent soluti tormentis, que tamen non timeant iterari...”.
[56] Hermann Dilcher, Die sizilische Gesetzgebung Kaiser Friedrichs II.: Quellen der Constitutionen von Melfi und ihrer Novellen (Studien und Quellen zur Welt Kaiser Friedrichs II. Volume 3; Köln-Wien 1975) 145-149. On the compilation of Frederick’s Constitutions, see K. Pennington, ‘Gregory IX, Emperor Frederick II, and the Constitutions of Melfi’, Popes, Teachers and Canon Law in the Middle Ages: Festschrift for Brian Tierney, edd. S. Chodorow and J.R. Sweeney (Ithaca, New York and London 1989) 53-61 and the essays in ... colendo iustitiam et iura condendo... Federico II legislatore del Regno di Sicilia nell’Europa del Duecento: Per una storia comparata delle codificazione europee, ed. A. Romano (Atti el Convegno Internazionale di Studi organizzato dall’Università degli Studi di Messina, Istituto di Storia del Diritto delle Istituzioni Messina-Reggio Calabria, 20-24 gennaio, 1995; Roma 1997).
[57] Peter D. Clarke, The Interdict in the Thirteenth Century: A Question of Collective Guilt (Oxford 2007) 21-28 and passim. Also Vito Piergiovanni, La punibilità degli innocenti nel diritto canonico dell’età classica (2 vols. Milan 1971-1974) and K. Pennington, ‘ “Pro peccatis patrum puniri”: A Moral and Legal Problem of the Inquisition’, Church History 47 (1978) 137-54, reprinted with revisions in Popes, Canonists, and Texts 1150-1550 (Collected Studies Series 412; Aldershot 1993).
[58] Constitutionum Regni siciliarum libri III, cum commentariis veterum jurisconsultorum (Naples 1773) 67: “Odiosa est hec constitutio... De Bottis”. On De Bottis see H. Hurter, Nomenclator literatius recentioris theologiae catholicae (3rd Edition; Innsbruck 1907) 1.343. See also Ennio Cortese, ‘Nicolaus de Ursone de Salerno: Un’opera ignota sulle lettere arbitrarie angioine nella tradizione dei trattati sulla tortura’, Per Francesco Calasso. Studi degli allievi (Roma 1978) 191-284.
[59] Ibid. p.70: “Ubi vero sine indiciis quis tortus confitetur, an praeiudicet, si perseverat in confessione? Dic quod non... ubicumque quis non debet interrogari cum quaestione, ibi si adhibita quaestione confitetur non valet quaestio... perseverantia non purgat quod sic vitiose factum est”.
[60] Ibid. p.74: “Dic quod totum hoc debet esse in consideratione boni judicis, ut videat conditionem rei sic indurati vel delicati... et sicut sunt indicia fortia, sic tormentetur semel et pluries, et quia pro qualitate delicti debet esse plagarum modus, Deuter. 25 (Deut. 25:2)... Et semper in dubiis potius inclinetur ad mitius quia sanctius est”.
[61] Capitula Regni utriusque Siciliae, ritus magnae curiae vicariae et pragmaticae (Vol. 2; Naples: Sumptibus Antonii Cervonii, 1773) 60.
[62] Ibid. p. 61.
[63] Ibid. “Nam is praesens iudex et officialis quocumque nomine censeatur, appellationem legitimam interpositam ante tormenta non receperit, aut hominem tormentaverit, ubi non debuit... per tormenta sic sibi adhibita mortuus fuerit vel condemnatus ad mortem... officiales adhibitores talium tormentorum ad ultimum supplicium propterea condemnentur. Simili poena mortis judicibus imminente, si definitive damnatum per eos ad mortem non admiserint appellantem, et appellatione rejecta mortis poenam dicto reo, ad quam erat damnatus, sententialiter inflixerunt. Si vero tormentatus mortuus non fuerit ex tormentis, dicti officiales poenam carceris biennalis incurrant et tertia pars bonorum suorum omnium”.
[64] Regni Siciliae Capitula, novissime accuratiori diligentia impressa... per illustrem Don. Raimundum Raimundettam... legum doctorem celeberrimum (Venice: Ex officina Dominici Guerraei and Iohannis Baptistae fratrum, 1573) c. 49, p. 292: “Nullus iudex... etiam si sit iudex magnae curiae... torquere aliquem, nisi concluso processu legitimo modo, et si contra fecerit sit privatus ipso iure officio suo... nec etiam dispensari possit per quempiam superiorem licentiam tribuendo iudici ut ante conclusam causam procedere possit ad torturam (nisi in crimine laesae Maiestatis)”.
[65] See especially Richard M. Fraher, ‘IV Lateran’s Revolution in Criminal Procedure: The Birth of the Inquisitio, the End of Ordeals, and Innocent III’s Vision of Ecclesiastical Politics’, Studia in honorem Eminentissimi Cardinalis Alfonsi M. Stickler, ed. Rosalio Iosepho Card. Castillo Lara (Studia et Textus Historiae Iuris Canonici 7; Rome 1992) 97-111 and Fraher, ‘Conviction According to Conscience’ 23-88.
[66] Fraher, ‘Preventing Crime’ 230. He repeated his misreadings of the same passages of Gandinus in his more extensive essay ‘Conviction According to Conscience’ 46-47. Whitman, Origins of Reasonable Doubt 54, has followed in this tradition by calling the inquisitorial procedure of the ordo iudiciarius “ferocious investigative methods”. As I will attempt to show in this essay, this approach is deeply flawed by a superficial reading of the procedural tracts.
[67] Hermann U. Kantorowicz, Albertus Gandinus und das Strafrecht der Scholastik, 1: Die Praxis, 2: Die Theorie (Berlin-Leipzig 1907-1926, reprinted 1978-1981) 2.64-69. On Gandinus see Hermann Lange and Maximiliane Kriechbaum, Römisches Recht im Mittelalter, 2: Die Kommentatoren  (München 2007) 468-477.
[68] Ibid. 67 lines 17-28.
[69] Ibid. 68 lines 18-30 and 69 lines 1-17.
[70] Ibid. 68 lines 18-26: “In questione premissa videtur fore dicendum et forsan non male, quod si contra istum reperiatur probatum per idoneos testes de publica fama et voce, et a quo habuerit certam originemm et quod non processit a malevolis et sibi maledicis, sed a viris providis et honestis, et quod non processit ad denuntiationem paucorum, sed alicuius parochie aut maioris partis vicine, et etiam appareat, quod ante commissum crimen, de quo queritur, opinio istius eriat alias lesa apud bonos et graves homines, tunc et in casu tali poterit et debebit questionibus subici”.
[71] Ibid. 155-177.
[72] Ibid. 156 lines 6-10: “Primum est quod omnis iudex qui de aliquo questionem intendit habere ante omnia habere debet iuris et humanitatis considerationem hanc, videlicet, ut non facile nec repente ad questionem prosiliat, si aliqua alia leviori via potest obiecti criminis veritas inveniri, quantumcumque adsint indicia vel verisimilia argumenta”.
[73] Ibid. lines 11-13: “Secundum nota quod non ex quolibet maleficio nec ex qualibet causa nec indifferenter de qualibet persona habenda est questio”.
[74] Ibid. lines 13-16: “Tertium nota quod non quelibet indicia sufficiunt ad torturam habendam. Tunc enim torquendus est reus, cum suspectus est, et indicia precesserint verisimilia, talia quod sola quasi torquendi confessio deesse videatur”. Albertus cites Dig., which reads “Ad tormenta servorum ita demum veniri oportet, cum suspectus est reus et aliis argumentis ita probationi admovetur, ut sola confessio servorum deesse videatur”. Albertus’ or the scribes’ interpolation of “quasi torquendi” does not make much sense.
[75] Ibid. lines 17-19: “Quartum nota quod in questione non est aliquis repetendus de iure nisi duo concurrant: et quod nova supersint indicia et quod tortus in fortitudine corporis animique duraverit”.
[76] Ibid. lines 21-25: “ Quintum nota quod iudices hoc temperamentum teneant ut tormenta non sumant de aliquo in immendsum nec quanta postulaverit accusator, sed prout moderate rationis temperamentum desiderat, adeo quod tortus sanus seu salvus innocentie seu supplicio conservetur”.
[77]  Lange and Kriechbaum, Römisches Recht 75, 325-326, 635.
[78] Dig. 49.5.2; this text does not quite make the point that Lambertus and Albertus wished it stated that if a judge’s decision to torture was rendered in a civil case where torture was never permitted or if torture was unlawfully applied in a criminal case the defendant could appeal. It did not answer the question whether new exculpatory evidence provided grounds for an appeal from a judge’s decision to torture.
[79] Gandinus, 165-166 lines 22-28 and 1-2: “Solutio. Dicatis quod defensio prius sit danda maxime quod tale quid allegatur probari, quo probato iste Titius non debet ad tormenta poni. Et super hoc ita mihi consuluit Bononie dominus Lambertus Ramponi, per legem, que dicit a comminatione tormentorum appellari, facta a iudice de aliquo tormentando, ut ff. de appellationibus recipiendis vel non l.ii. (Dig. 49.5.2) et est ratio quare in predicto casu appellatio sit concessa quia si post torturam differetur defensio, numquam per appellationem posset postea recuperare detrimentum membrorum”.
[80] Ibid. 167 lines 6-18.
[81] Ibid. line 19: “quo deficiente quicquid sequitur ex eo vel ob id non valet”.
[82] Ibid. lines 24-30: “Sed quero hic que confessio dicatur facta formidine tormentorum? Respondeo si torquendus ducatur ad pedem torture et legentur ei manus de retro et dicatur ei a iudice quod, nisi confiteatur quod in continenti subiiciet eum torture. In hoc casu si confiteatur non tenet talis confessio, nisi in confessione fuerit perseveratum, quia lex equiparat talem confessionem extortam formidine tormentorum confessioni facte in tormentis, ut C. quorum appellationes non recipiantur l.ii. (Cod.”. The text of the Codex is from the Emperor Constantius (344 A.D.): “Sicut enim haec ita observari disposuimus, ita aequum est testibus productis, instrumentis prolatis aliisque argumentis praestitis, si sententia contra eum lata sit et ipse, qui condemnatus est aut minime voce sua confessus sit aut formidine tormentorum tentus contra se aliquid dixerit, provocandi licentiam ei non denegari”. Albertus noted that Accursius, the ordinary glossator to the Codex (ca. 1230), s.v. formidine tormentorum, wrote that Constantius did not say “fear in torture” but “fear of torture”.
[83] Ibid. 168 lines 10-18.
[84] Ibid. lines 19-28: “Sed quid si extra locum in quo homines torquentur iudex dixit ‘aut confitearis aut ducam te ad tormenta’, inferendo sibi terrorem de hoc quantum poterat, et ille talis his auditis fuerit confessus. Numquid dicetur in hoc casu confessio facta formidine tormentorum? Dic quod non, quia levis territio... Terrorem autem aut metum tormentorum debemus accipere presentem et instantem torture... Levis enim territio tormentorum extra locum torture facta illusoria est, arg. ff. si cui plus quam per legem Falcidiam l. Hec satisdatio (Dig. 35.3.4)”.
[85] E.g. Ibid. 156 line 20: “licet de consuetudine multi assessores hoc non servent <the rules governing torture>“.
[86] Ibid. 1.203-218.
[87] Ibid. Besides the case of Mengho torture was used in case number 26 (p. 234-235) and number 108 (p. 332-334). Kantorowicz also published a list of 16 cases decided by a podestà from Milan, Ottolinus de Mandello sitting as judge between October 1289 and April 1299. Torture was used in one of the cases.
[88] Daniel Lord Smail, The Consumption of Justice: Emotions, Pubicity, and Legal Culture in Marseille 1264-1423 (Conjunctions of Religion and Power in the Medieval Past, Ithaca-London 2003) 180-182. Smail does not, unfortunately, provide dates for these cases.
[89] Steven Bednarski, Crime, justice et régulation sociale à Manosque, 1340-1403 (Thèse Ph..D. Université de Montréal 2002), cited by Smail, Consumption 181.
[90] Claude Gauvard, “De Grace especial”. Crime, êtat et société à la fin du Moyen Age (Histoire Ancienne et Médiévale, 24; 2 vols. Paris 1991) 1.132-135, 155-162, 178-181. Also cited by Smail, p. 182. For an excellent description of these two courts and their jurisdiction see Richard Mowery Andrews, Law, Magistracy, and Crime in the Old Regime Paris, 1735-1789, 1: The System of Criminal Justice (Cambridge 1994) 55-101.
[91] Langbein, Torture 81-128.
[92] Andrews, Law, Magistracy 441-446, who does not make this generalization on the evidence of court records. On the Ordinance see Schmoeckel, Humanität 261-262, 395-396 et passim; Code Louis, 2: Ordonnance criminelle, 1670 (Testi e Documenti per la Storia del Processo, 1; Milan 1996) 219-227.
[93] A point made by Fraher, ‘Conviction According to Conscience’ 80 n. 201, with a list of some of those who have made that argument. These figures also call into question Langbein's conviction that torture must have been used frequently in the courts of the Ius commune because two eyewitnesses or a confession was required for conviction, see below, n. 126. It is not possible that a “full proof” could have been presented in all these cases in which torture was not employed.
[94] For the most recent version of this argument see Whitman, Origins of Reasonable Doubt 100-102. Most recently, Geary, ‘Judicial Violence’ 88. See also discussion above at n. 44.
[95] For the life and works of Baldus, see K. Pennington, ‘Baldus de Ubaldis’, Rivista internazionale di diritto comune 8 (1997) 35-61 and Lange and Kriechbaum, Römisches Recht 749-795.
[96] Alberto Boscolo, Sibílla Fortià regina d’Aragona (Pubblicazioni dell’Istituto de Storia Medioevale e Moderna dell’Università degli Studi di Cagliari, 13; Padova 1970) 125-129 and José Maria Roca, La Reyna empordanesa (Barcelona 1928). My thanks to Adam Kosto for these references. Boscolo doubts whether the story about Sibilla is true since it was reported by a fifteenth-century source. He conjectures that another Sibílla Fortià, who was tried for witchcraft ca. 1412-1416, might be the Sibilla who was tortured (pp. 126-127). Baldus wrote his consilium before he died in 1400. It is the earliest evidence for the story, and the date of his consilium confirms the late Spanish source, a poet named Giacomo Roig († 1478).
[97] Vat. Barberini lat. 1409, fol. 95v-96v. The consilia in this manuscript were written ca. 1400 in the last year of his life. The consilium was printed in the vulgate edition of Baldus’ Consilia in Book 3, consilium 364. On the editions of Baldus’ Consilia , see Pennington, ‘Baldus’ 52-61.
[98] Ibid.: “Et primo quod in tortura caute illustris regine requiruntur indicia certa et que non possunt in dubium reuocari utrum sint indicia necne”.
[99] Ibid. “Et ut dixit Aueroys querere rationem ubi habemus sensum est infirmitas intellectus. Adeo quidem hoc verum est ut plene conuictus non indigeat tormentis, quia superfluum est tunc adhibere tormenta”.
[100] Ibid. “Nam prout proponitur ista illustris domina fuit confessa in tormentis uel saltim probabili uel necessario metu tormentorum, cui confessioni non est standum, nisi in confessione perseueretur et cesset terror tormentorum, ut ff. de question. l.i. § <space> Set ista illustris domina non perseuerauit in confessione, ymo cum data fuit sibi libertas se excusandi, reuocauit confessionem, ergo talis confessio cum fuerit reuocata non sufficit, ut C. de custod. reo l.ii”.
[101] Ibid. fol. 96r: “Item dicit Albertus Magnus lib. xv. de proprietate rerum quod libera gens est cui libera mens et libera lingua”.
[102] Ibid. “Illud enim certum est quod metus iustus est timere crudelitatem uel capitalem inimicitiam hominis potentis... quod ex iusta causa metuendi presumitur metus et concussio”.
[103] See examples of Baldus’ timidity in the texts published in Kenneth Pennington, ‘The Authority of the Prince in a Consilium of Baldus de Ubaldis’, Studia in honorem Eminentissimi Cardinalis Alfonsi M. Stickler, ed. Rosalio Iosepho Card. Castillo Lara (Studia et Textus Historiae Iuris Canonici 7; Rome 1992) 483-515 at 504 lines 306-309 and 508 lines 409-413, with revisions in the same essay reprinted with corrections in Popes, Canonists, and Texts 1150-1550 (Collected Studies Series 412; Aldershot 1993).
[104] Vat. Barb. lat. 1409, fol.96r: “Solutio. Dicendum est quod conscientie regis hoc est relinquendum cum consilio sanctorum et peritorum timentium Deum. ‘Quia cum rex iustus sederit supra sedem non aduersabitur ei quicumque malignum’, ut in epistola Inter claras (quoted from Cod. Sed si relicto bono et speculo conscientie secus faceret, enormiter peccaret, ut in c. Cum eterni, de re iud. lib. vi. (VI 2.14.1)”.
[105] Ibid. fol. 196v. The text of the second part of the consilium begins on a new folio and may be an independent text.
[106] (3 Vols. Salamanca: 1555) 7.30, fol. 88r-91r. 7.30.2 covered those persons who could not normally be tortured. Included in the list of exempt persons were doctors of laws. The author of the ordinary gloss, Gregorio López de Tovar (1496-1560), remarked sarcastically that s.v. maestro de las leyes: “Nota bene quod Doctores non debent torqueri et de iure communi non reperies legem ita clare hoc exprimentem. Doctores tamen ita dicebant”. See Las Siete Partidas, translated by Samuel Parsons Scott, edited by Robert I. Burns (5 Vols. The Middle Ages; Philadelphia 2001) 5.1458-1462.
[107] When Giuseppe Cesari painted Farinacci s portrait ca. 1600 (Rome, Museo Nazionale di Castel Sant Angelo) he quite deliberately and obviously posed him to leave his left eye in the shadows.
[108] See Beatrice Cenci: La storia, il mito. ed. Mario Bevilacqua and Elisabetta Mori (Roma 1999).
[109] A. Mazzacane, ‘Farinacci, Prospero (1544-1618)’, Juristen: Ein biographisches Lexikon von der Antike bis zum 20. Jahrhundert, ed. Michael Stolleis (München 1995) 199-200; Niccolò Del Re, ‘Prospero Farinacci giureconsulto romano (1544-1618)’, Archivio della Società Romana di Storia Patria, 3rd series 28 (1975) 135-220. Mazzacane writes that he completed it in 1614, but an edition of Praxis et theoricae criminalis was published in Venice: apud Georgium Variscum, 1603 (in fine 1601), which is described as the third edition, with additions made by the author to the first and second editions, see Antichi testi giuridici (secoli XV-XVIII) dell’Istituto di Storia del Diritto Italiano, ed. Giuliana Sapori (Università degli Studi di Milano, Pubblicazioni dell'Istituto di Storia del Diritto Italiano, 7; Milan 1977) 1.242, no. 1162. See also Fiorelli, Tortura, who quotes Farinacci extensively.
[110] Prospero Farinacci, (Prosperus Farinacius), Praxis et theoricae criminalis libri duo in quinque titulos distributi (Frankfurt 1606) Book 1 Title 5 Quaestio 37, p. 575: “Torturam inferri minime posse non legitimis praecedentibus indiciis (sic nempe in proposita quaestione regulam constituendam censui... in l. finale, ff. de quaest. in. l. Milites... ubi <Rolandus> valde invehit contra iudices modernos, qui suum velle loco indiciorum subrogante ut plurimum velo levato homines torquent, dicitque tales iniquos iudices minime fore a superioribus et Principibus tolerandos... ubi <Iulius Clarus (Giulio Claro,) Practica civilis atque criminalis> admonet iudices Deum timentes ut semper prae oculis habeant ne aliquem tormentis subiiciant non solum sine indiciis sed nec etiam cum indiciis nisi legitima et sufficientia fuerit”.
[111] Ibid. p. 576: “Amplia 1: Hanc regulam quod ad hoc ut indicia dicantur legitima et sufficientia ad torturam inferendam, illa debent esse verisimilia, probabilia, non levia aut perfunctoria, sed graviora et urgentia, certa, clara, immo et luce, ut aiunt, meridiana clariora in tantum, ut iudex non solum sit quasi certus de delinquente sed etiam aiunt, nihil aliud sibi deesse videatur quam eiusdem rei confessio”.
[112] Ibid. p. 587: “Vt sine legitimis praecedentibus indiciis iudex, nec leviter quidem potest reum torquere, immo nec terrere, quia metus torquendi aequparatur torturae... quod torquendi metus dicitur incussus reo si fuerit legatus ad torturam vel fuerit ductus ante eam, vel si minae de torquendo praecesserunt, vel si fuerit spoliatus ante torturam etiam quod non ligatus... iudex sicut non potest torquere sine indiciis ita etiam nec potest terrere per minas seu alio modo... etiam testatur de communi opinione... quod sicut iudex non potest sine praecedentibus indiciis reum torquere ita pariter nec poterit terrere et multo minus leviter torquere, et si torqueat vel terreat, confessio subsequens tanquam metu torturae extorta nihil operatur. Et ita sine dubio se habet magis communis doctorum opinio”.
[113] Ibid. p. 588: “Vir enim sagax et assuefactus carceri, examini et torturae potest terreri etiam sine indiciis in processu exsistentibus quando ut dixi extra processum iudex habet de eo vehementem suspicionem... sed si carceratus esset vilis, timidus et non assuefactus carceri ex praemissis tunc secus crederem”.
[114] Ibid. p. 589, “Amplia 12 Vt iudex qui indebite aliquem torquet et sic non praecedentibus legitimis indiciis teneatur in syndicatu et puniendus sit... Immoderata enim saevitia et quaestio nec etiam in servos a quacunque privata persona habenda est et si habetur punitur in iure... ergo multo magis punibilis est indebita quaestio in liberos etiam a iudice et magistratu illata. Quod enim prohibitum est et punibile in privatis multo magis illicitum reputatur et prohibitum in magistratibus, qui sub ficto colore iustitiae delinquunt... Poena enim iudicis qui indebite reum torquendo dolo occidit est pariter de occiso et mortis naturalis”.
[115] Ibid. Book 1, title 5, Quaestio 38, p. 602: “Limita 2. Quia etiam exsistentibus indiciis reus torqueri non potest nisi prius eo posito ad largam datoque ei competenti termino ad faciendum suas defensiones una cum copia indiciourm et processus contra ipsum exsistentium, secundum aliam communem et pariter ab omnibus approbatam opinionem....
[116] Ibid. p. 603: “Limita 6. Vt etiam quod iudex habeat in processu legitima ad torquendum indicia. Non tamen de facto potest absque alio procedere ad torturam nisi prius interloquendo pronuntiet reum fore torquendum... ubi reprehendit <Franciscus Brunus, Tractatus de indiciis et tortura, Tractatus universi iuris (Venice 1583-1584) 11.1 fol. 246rb-260vb > illos iudices qui sitientes sanguinem humanum potius quam iustitiam et cupientes haberi iusti, cum non sint, nolunt pronuntiare reum esse torquendum ut evitent appellationem a dicta interlocutoria interponendam... et ita non solum omnes doctores tenent sed etiam in practica omnes criminalistae communiter observant et est notorium... Immo licet alias iudex fatuus dicatur exprimendo causam in sententia... communiter tamen observatur ut in decreto torturae iudex exprimendo causam summatim recenseat omnia indicia et omnes praesumtiones quibus movetur ad infligendum reo torturam... et ab illo decreto torturae posse appellari”.
[117] Ibid. p. 604 : “Amplia 3. Vt sit licitum non solum appellare a decreto torturae sed etiam a comminata tortura... quod sic ut per appellationem a decreto de torquendo ligantur manus iudicis, ita etiam ligantur per appellationem a comminatione”.
[118] Ibid. “Amplia 5. Vt si iudex non obstante appellatione ad torturam processert et ob id a reo confessionem extorserit, talis confession prorsus nulla et inefficax sit ad condemnandum”.
[119] Ibid. p. 606-607: “Limita 8... <iudex> scire etiam debet quot sint gradus torturae... Primus erit territio quae quidem territio isto casu non solum comprehendit minas de torquendo sed etiam conductionem ad locum tormentorum, spoliationem, et ligaturam. Secundus erit torturae gradus, quando reus ponitur in tormentis, elevatur, et ibidem retinetur per aliquod notabile spatium. Tertius est quando reus non solum torquertur et tenetur in suspenso, sed etiam quando squassatur uno vel duobus ictibus funis vel etiam tribus... et sicut isti sunt tres gradus torturae, ita etiam post Baldum in consilio 77 num. 8 libro 3” (Vat. Barberini lat. 1410, fol. 57v-58v, followed by a second consilium on torture 3.78, fol. 58v-60r; these consilia date to ca. 1391).
[120] See note 123 for Farinacci’s text defining “indicia”.
[121] See Fraher, “Conviction According to Conscience” 80 n. 201.
[122] Whitman, Origins of Reasonable Doubt 119-120. The text that Whitman cites is one in which Farinacci did discuss doubt in the mind of a judge. Farinacci wished to define the terms “doubt,” “opinion,” and “suspicion” in the judge’s mind, but the passage had nothing to do with the “indicia” needed to torture. In n. 120, p. 244-245 Whitman did not correctly transcribe Farinacci’s text. It should read (not counting the ellipses that he did not insert): “Et dubius is dicitur, [qui cum duas vias habeat, utram eligat nescit. Iudex ergo tunc dubitare dicitur], quando non magis animum suum...”. Omitted text in brackets, Farinacci, Praxis Book 1, title 5, Quaestio 36, p. 568.
[123] Farinacci, Praxis Book 1, title 5, Quaestio 38, p. 602: “Quia quando contra reum adunt tot indicia et probationes ut illum reddant nedum suspectum sed etiam convictum de crimine de quo agitur tunc inquam ipse reus sic convictus non torquetur sed condemnatur, quia tortura non nisi in subsidium et ubi veritas aliter haberi non potest infligenda est...”. Langbein, Torture 45-60, argues that a new “revolutionary” concept of proof, the “poena extraordinaria“ rendered the “full proof” of the Ius commune obsolete in the sixteenth and seventeenth centuries. As I have indicated in this essay, the jurists had never adopted the principle that a full proof consisted of two eyewitnesses or a confession. If any idea about European procedure is a “fairy tale,” it is this one. From the thirteenth century on jurists understood that proofs could be sufficient without “full proof” of two eyewitnesses or a confession. In the second edition of his book (p. xi-xiii, especially n. 9) Langbein defends his thesis vigorously. A full critique of Langbein's “revolution” would require another long essay in which the jurists' discussions of “indicia indubitata” from the thirteenth to the sixteenth centuries would be thoroughly explored, a task that no historian has yet undertaken. Schmoeckel, Humanität 222-228, 337-338, who gives a short and far from complete discussion of the “indicia indubitata”. He expresses the same doubts that I have about the alleged inflexibility of the “full proof” in the Ius commune on p. 78-79, 349.
[124] Ibid. p. 603: “Limita 4. Quia etiam quod adsint indicia ad torturam sufficientia et legitima non tamen per hoc reus statim est torquendus, sed est inspicienda eius persona an sit privilegiata necne, seu alias torqueri possit, quia licet regulariter omnes personae torqueri possint... multae tamen reperiuntur personae ab hac generalitate exceptae ut puta milites... impuberes... mulier praegnans... positi in clarissima dignitate...”.
[125] Pennington, “Due Process, Community, and the Prince” 9-47 and Pennington, ‘Innocent Until Proven Guilty: The Origins of a Legal Maxim’, A Ennio Cortese (3 Volumes. Roma 2001) 3.59-73, a revised version in 63 The Jurist (2003) 106-124.
[126] On the jurists’ understanding of “potestas absoluta” see Pennington, Prince and the Law 106-118 and passim.
[127] Farinacci, Praxis Book 1 title 5, Quaestio 37, p. 584-585: “Amplia 5: Vt nec princeps possit mandare ut reus torqueatur sine indiciis ad torturam sufficientibus et si mandaverit iudex non tenetur, nec debet illi obedire, etsi obediet tenetur in syndicatur et puniendus est, nec excusatur propter principis iussum... princeps non potest mandate de potestate absoluta, male facit, quia tunc potestatem suam excedit, et tunc cor regis non est in manu dei, et licet nullus inferior possit ei dicere cur ita facis? Neminemque habeat in mundo quia sua fact iudicet debet tamen considerare quod est homo ac deo subiectus, et quod factus est a deo rex non ut iniustitiam, sed ut iustitiam faciat rectam... Et ad praesens in illa gravissima causa surreptionis annuli piscatoris scio adesse chyrographum manu sanctissimi domini nostri Sixti papae V signatum, quo datur iudicibus potestas torquendi reos pro habenda ulteriori veritate et complicibus, etiam denegata copia indiciorum, addita tamen clausula, ‘Quatenus sufficientia praecedant indicia iudicis arbitrio.’ Non enim ignoravit iste pontifex quantum a iuris ratione discrepet reos sine indiciis torquere et propterea id mandare noluit...”. Farinacci cited the contrary opinion of Paris de Puteo (Paride dal Pozzo 1413-1493) but concluded “Quid dicendum? Ex praemissis vides nullam fieri difficultatem in eo, quod scilicet princeps non possit cum bona conscientia mandare, ut quis torqueatur non legitimis praecedentibus indiciis, sed solum dubium videtur consistere, an iudex illud iniustum mandatum exsequendo excusetur, necne. Et quidem minime fore excusandum credo, quia licet regula sit quod principis et superioris iussus, inferiorem et praecipue iudicem excuset, ut ex praeallegatis colligitur. Id tamen erit intelligendum ut procedat in levioribus non autem in atrocioribus, prout est tortura, ex qua hominis vita in periculo mortis ponitur. In atrocioribus enim iudex non excusatur saltem a poena extraordinaria...”. On the meaning of “poena extraordinaria, see Langbein, Torture 45-64.
[128] See Beatrice Cenci: La storia il mito 61-79.
[129] Cited by Fraher, ‘Conviction According to Conscience’ 55. On Angelus and his works, see Domenico and Paola Maffei, Angelo Gambiglioni: Giureconsulto Aretino del Quattrocento: La vita, i libri, le opere (Biblioteca della Rivista di Storia del Diritto Italiano, 34. Roma 1994), especially p. 57-64 and 95-102.

[130] Ibid. 41-42 and 56. See also Gandinus’ discussions of “indicia indubitata” in Gandinus 2.90-98.

[131] Humanität und Staatsraison 93-186.

[132] Essays 1.22; 2.5, 11.

[133] Tribunal reformatum (Hamburg 1624).

[134] Cautio criminalis seu de processibus contra sagas liber (Frankfurt am Main 1632), published anonymously.

[135] Si la torture est un moyen seur a verifier les crimes secrets: Dissertation morale et juridique (Amsterdam 1682).

[136] Lisa Silverman, Tortured Subjects: Pain, Truth, and the Body in Early Modern France (Chicago-London 2001) 71-84.

[137] See Langbein, Torture 10, list of countries that banned torture in the eighteenth century.

[138] Dig. “Quaestioni fidem non semper nec tamen numquam habendam constitutionibus declaratur: etenim res est fragilis et periculosa et quae veritatem fallat”.

[139] I am far from the first to reach the conclusion that torture was rejected before legislatures outlawed it. Every scholar who has studied the history of torture has come to similar general conclusions, although, as we have seen, they differ on exactly when torture was eliminated; see Peters, Torture 8-9; Langbein, Torture 8-10. Most recently Heikki Pihlajamäki, “The Painful Question: The Fate of Judicial Torture in Early Modern Sweden,” Law and History Review 25 (2007) 557-592.

[140] [Cesare Beccaria], Dei delitti e delle pene (Monaco [Livorno?] 1764), published anonymously. Pietro Verri, Osservazioni sulla tortura: E singolarmente sugli effetti che produsse all’occasione delle unzioni malefiche, alle quali si attribuì la pestilenza che devastò Milano l’anno 1630 (Milan 1804), published postumously.

[141] John Yoo, UCBerkeley News January 4, 2005: “Gonzales’ memo did, however, say that the terrorist threat rendered ‘obsolete Geneva’s strict limitations on questioning of enemy prisoners.’ Why? Because the United States needed to be able 'to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians.’ Information remains the primary weapon to prevent a future Al-Qaida attack on the United States... Gonzales also observed that denying POW status would limit the prosecution of U.S. officials under a federal law criminalizing a grave breach of the Geneva Conventions. He was concerned that some of the conventions' terms were so vague (prohibiting, for example, ‘outrages upon personal dignity') that officials would be wary of taking actions necessary to respond to unpredictable developments in this new war” (http://www.berkeley.edu/news/ media/releases/2005/01/05_johnyoo.shtml).

[142] George W. Bush, September 15, 2006 Press Conference: “This debate is occurring because of the Supreme Court's ruling that said that we must conduct ourselves under the Common Article 3 of the Geneva Convention, and that Common Article 3 says that, you know, there will be no outrages upon human dignity. That’s like it’s very vague. What does that mean, ‘outrages upon human (recte personal) dignity’? That's a statement that is wide open to interpretation”. (http://www.whitehouse.gov/news/releases/2006/09/20060915-2.html) The capstone moment of Bush’s advocacy of torture came on March 9, 2008, when the President of the United States vetoed a bill that would have forbidden the use of torture.

[143] Waldron, ‘Torture and Positive Law’ 1688-1695 discusses these two texts and others.

[144] In a BBC radio 4 broadcast on February 12, 2008 Justice Antonin Scalia defended the use of torture. “I suppose it’s the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?” ... “It would be absurd to say you couldn’t do that. And once you acknowledge that, we're into a different game”. ... “How close does the threat have to be? And how severe can the infliction of pain be?” At a conference in Ottawa, Canada, Scalia reportedly used Jack Bauer as a model for employing torture to prevent the “ticking bomb scenario,” according to an article in the Toronto Globe and Mail of June 16, 2007.

[145] Alessandro Manzoni, Storia della colonna infame: Testo del 1840, ed. Alberto Chiari and Fausto Ghisalberti (Milan 1963) 702: “Da queste testimonianze, e da quello che sappiamo essere stata la tortura negli ultimi suoi tempi, si può francamente dedurre che I criminalisti interpreti la lasciarono molto, ma molto, men barbara di quello che l’avevan trovata. E certo sarebbe assurdo l’attribuire a una sola causa una tal diminuzione di male; ma, tra le molte, me par che sarebbe anche cosa poco ragionevole il non contare il biasimo e le ammonizioni ripetute e rinnovare pubblicamente, di secolo in secolo, da quelli ai quali pure s’ attribuisce un'autorità di fatto sulla practica de’tribunali”. Manzoni’s father was probably Giovanni Verri, the brother of Pietro, and his mother was Giulia Beccaria, the daughter of Cesare, see Alessandro Manzoni, Storia della colonna infame: Testo definitivo e prima redazione, ed. Renzo Negri (Milano 1974) 5.
[146] Pennington, ‘Innocent Until Proven Guilty’.