This is an augmented and revised essay that appeared in Recto ordine procedit magister. Liber amicorum E.C. Coppens, edited by Jan Hallebeek et al. (Iuris Scripta Historica 28; Brussels: Royal Flemish Academy of Arts and Sciences, 1212).
Women on the Rack: Torture and Gender in the Ius commune
The Middle Ages is a Distant Mirror.<![if !supportFootnotes]><![endif]> It is a mirror in which we see ourselves only dimly or rarely. Serious scholars have warned us that what we see can be misleading. These warnings have merit. In 2008 Gabrielle Spiegel was president of the American Historical Association and came to that office as a distinguished medievalist. In the Association’s Perspectives on History she pointed out that the authors of the torture memos produced by the Department of Justice used medieval analogies to support their arguments. Borrowing dialogue from Quentin Tarantino’s Pulp Fiction she called their efforts “getting medieval.” In Tarantino’s script “getting medieval” meant getting downright nasty. Spiegel argued that the neo-cons who used medieval examples and medievalists who use analogies to confront modern problems “without demonstrating the validity of the transference” are guilty of betraying their sources.<![if !supportFootnotes]><![endif]> So, the reader of this essay has been properly warned. Nonetheless, I think that looking into the mirror is worth the effort. We should not reject the images we see as just being untrustworthy phantoms from a strange and alien place.
The story that I will tell in this essay is of four women. Queen Sibílla Fortià of Aragon, an unknown woman named Mita, Beatrice Cenci of Rome, and Artemisia Gentileschi, also of Rome. What unites these four women is torture. All four were summoned to court, and all four were tortured.
There is nothing particularly unusual about being tortured in a medieval or early modern courtroom. It is very much part of the Distant Mirror --- and not alien to the present. Human beings have tortured other human beings for several millennia. Ancient Roman jurists gave torture a place in their legal system and created a jurisprudence that described and circumscribed torture. Medieval courts included torture in their arsenal of procedural steps through which information was gathered and the “truth” was established. However, Roman, medieval, and early modern jurists believed that torture was a flawed instrument. It had to be used carefully. It did not always deliver the truth. Eventually torture was abolished in the eighteenth century for two reasons: Torture did not work, and it was barbaric. In spite of that historical record and the Enlightenment’s rejection of torture, we have reintroduced torture in the early twenty-first century as being acceptable, even admirable, in fact and fiction. The American Central Intelligence Agency and a television character, Jack Bauer, bravely used torture and justified its use by fear: fear of the dangerously unknowable. The torturers were praised, supported and applauded by many in government, academia, and the American public.<![if !supportFootnotes]><![endif]> The same fear permeates the stories of two of these women. They were tortured because their crimes were considered to be dangerous threats to society and public order. The third was tortured for an entirely different reason: she wanted to be believed. Like the CIA agents and their enablers among us she was convinced that torture could produce reliable evidence that would sway the judges who tortured her.
In the pre-modern world torture produced a “gender gap.” Men were tortured, but women were generally spared or exempted from its worst forms. Some crimes, however, were considered so heinous that women were not spared the rack.<![if !supportFootnotes]><![endif]> Treason, heresy and magic were particularly loathed. In the minds of princes, jurists, and common folk they were equally monstrous. Although women were far from equal in pre-modern law, they were considered capable of serious crimes. Women were especially dangerous because of the powers of their sexuality and their talent for the occult. Women who were accused of crimes of magic, witchcraft, or sexual adventurousness could easily become victims of society’s fear. Sibílla, Mita, Beatrice, and Artemisia were in court because of four different crimes: magic, adultery, murder and rape. How these four women were treated will not give us startling new insights into the status of women in medieval and early modern society, but these four stories will resonate with the reasons that the American government gave when it resorted to torture at the beginning of the twentieth century. It may be a distant mirror, but it is a mirror.
The most important and prolific jurist of the fourteenth century, Baldus de Ubaldis († 1400), discussed Sibílla’s late fourteenth-century cause célèbre in one of his many consilia.<![if !supportFootnotes]><![endif]> By chance his consilium contains the only trustworthy information we have about the trial. The Queen of Aragon, Sibílla Fortià, had been married to King Pedro IV (1336-1387) and was the stepmother of Pedro’s son, King Juan I (1387-1395). Juan entertained doubts about Sibílla, and soon after he ascended the throne he accused her of practicing black magic that he said affected his health.<![if !supportFootnotes]><![endif]> The case must have attracted attention far outside Aragon because Baldus was commissioned to write a consilium that discussed the legality of Sibílla’s treatment by the court. Consilia were the dominant genre in the late medieval Ius commune, and they can be roughly compared to briefs in modern American common law. Like briefs most consilia were “ex parte,” that is the jurist did not do an even handed analysis of a case but presented an argument for one of the parties.<![if !supportFootnotes]><![endif]> Writing consilia was a major source of income for jurists in the late; Baldus wrote more consilia than any other medieval jurist. He was reported to have earned 15,000 ducats, a magnificent sum, for selling his learned opinions.<![if !supportFootnotes]><![endif]> In some cases marginal notations in his manuscript tell us who commissioned the consilium and how much was paid, but this Sibílla’s consilium contains no marginal note.
The case was perfect for the international gossip trade. There are, as far as we know, no records of the trial in the Spanish archives, and, although we have no idea from where he got his information, Baldus seems to have been very well informed about it. Sibílla’s stepson, King Juan, was reputed to be effete and profligate; Sibílla was endowed, it was thought, with magical powers. King Juan accused her not only of sorcery but, since she wished to injure the king, also of treason.
The first question that Baldus raised was whether a queen could be tortured. He rehearsed the legal norms that were embedded in the jurisprudence of the Ius commune. No one could be tortured without firm evidence (indicia certa) whose authenticity cannot be doubted.<![if !supportFootnotes]><![endif]> Remarkably, he quoted a Moslem and Christian to buttress his argument. He cited 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.<![if !supportFootnotes]><![endif]> 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. He noted that the confession obtained through torture was not valid unless it had been repeated in court when the defendant was not buffeted by the terror of torture.<![if !supportFootnotes]><![endif]> Baldus then turned to a Christian theologian: “As Albertus Magnus said, a free person must have a free mind and a free tongue”<![if !supportFootnotes]><![endif]>. 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.”<![if !supportFootnotes]><![endif]> Baldus’ solution to whether Sibílla should have been tortured reflects his well-known fear of offending princes — especially his own.<![if !supportFootnotes]><![endif]> “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.”<![if !supportFootnotes]><![endif]> In the second half of his consilium Baldus did make the point that even nobles could be tortured if they practiced magic.<![if !supportFootnotes]><![endif]> If the prosecutors of Sibílla followed the rules of the late thirteenth-century Castillian codification, Las siete partidas covering the law of torture, they would have adhered to the norms (with a few exceptions) of the Ius commune.<![if !supportFootnotes]><![endif]>
We do not know what happened to Sibílla. We do know that a trial took place. We know that contrary to the normal rules governing the use of torture that she was tortured during the trial. That is not a surprise. King Juan accused her of a crime that gripped the imaginations of European males for centuries: the power of a woman to exercise the powers of the occult. The fear of a woman’s power to injure their victims did not subside until the end of the seventeenth century in Europe.<![if !supportFootnotes]><![endif]> Baldus had no doubts about how dangerous a woman with magical powers was. Their social standing did not protect them. Rather it aggravated their offense.<![if !supportFootnotes]><![endif]> At the end of the consilium Baldus asked the question whether magic can work through a spell cast upon the victim and whether a spell could disturb a person’s mind. The question must have arisen from what Baldus knew about Sibílla’s trial. Could Sibílla, in other words, have injured King Juan with a spell? Baldus’ answer was yes, if God permitted it.<![if !supportFootnotes]><![endif]> He also asked whether one spell could negate another. Again, Baldus thought a spell could be countered by another spell, even a spell of demons could be effective in removing a spell. Sometimes, he observed, we must drink from turbid water.<![if !supportFootnotes]><![endif]> Baldus’s answers were on the edge of what was theologically orthodox in the late fourteenth century and are revealing for what they tell us about the educated, elite ideas about magic and its dangers. His ideas may have endorsed beliefs that were firmly embedded in the uneducated and the elite. Baldus was not a skeptic. He believed that Sibílla might have seriously injured her stepson with magic. He was not convinced about the necessity of torture in a trial, but he did have a healthy fear of magic.
Baldus discussed the torture of women in another consilium that dealt with a wife, Mita, who had been accused by her husband, Mutius, of adultery. He presented the court with the testimony of four witnesses, three of whom presented problems. The three comprised a priest, to whom Mita had presumably confessed her sin outside the confessional and to her husband’s father and brother. Baldus grappled with a legal question that emerged in the twelfth century. Do confessions made outside the courtroom have any validity or weight?<![if !supportFootnotes]><![endif]> Baldus did not explain directly how Mita managed to blunder into that thicket of jurisprudential and personal briarpatch. There was a story hiding behind his sparse facts that Boccaccio might have told well.<![if !supportFootnotes]><![endif]> A witness had seen Mita on the streets at night in a place that was suspect. He or she told her husband. Her husband, his father and his brother had questioned her (in the presence of the priest?). She had evidently confessed to adultery. Once away from her kin (and their menance?) she retracted her confession. The central question of the consilium was whether the evidence (indicia) were sufficient to submit her to torture?<![if !supportFootnotes]><![endif]> The judge in the case had already ruled that she could be tortured. Baldus was asked whether his decision was correct.
Like a good but unscrupulous lawyer Baldus did not confront the issue but attacked the victim. His first point was that Mita’s confession was made to honest persons but avoided the issue of consanguinity. Under normal circumstances witnesses who were related to the plaintiff and were not permitted to testify in the Ius commune. Baldus, however, avoided that legal objection and alleged that Mita was “suspectissima” because an unnamed witness (probably the first one he mentioned) placed her outside her home at night and at a suspicious time. <![if !supportFootnotes]> <![endif]> Mita responded that she was visiting a female friend who would offer a reason for her visit. Baldus rejected her excuse. The only reason for being out at night was to do evil; those who do wrong hate the light. <![if !supportFootnotes]> <![endif]> He argued on the basis of a very dubious precedent in canon law and an even more dubious principle from Roman law that one witness could provide a proof and that persons from a household (domestici) could provide evidence in a criminal case. The canon law precedent was flawed because it was a precedent in testamentary law establishing the validity of a will and was not criminal accusation. The Roman law allegation did not establish that household persons could testify in criminal matters, especially sexual crimes.<![if !supportFootnotes]><![endif]>
Baldus finally confronted the central legal question: could a confession made to a priest and her husband’s father and brother outside the courtroom be sufficient to condemn Mita to torture. To his discredit and with not a single justification in the jurisprudence of the Ius commune, but with a specious argument about family honor, Baldus said yes. The accusation of adultery stains the entire family; further it is within the judge’s discretion to decide whether the evidence is sufficient to torture the defendant.<![if !supportFootnotes]><![endif]>
What led Baldus to write such a flawed defense of the judge’s decision to torture Mita on the basis of clearly insufficient evidence? The short answer is money. A longer answer that in some way may exonerate him would be the nature of conslia and the role it played in the jurisprudence of the Ius commune. The judge’s decision may have provoked outrage because it was contrary to prior jurisprudence on the validity of confessions made outside the courtroom. If so, the court may have sollicited Baldus for his Consilium sapientis. Baldus was paid to write an ex parte defense of the court’s decision. The judge may have wished to have the most famous jurist of the times write an exculpatory opinion, because he feared that Mita’s family might bring suit against him though a procedure known as sindicatio. The procedure was used to bring magistrates to justice who misused their offices.<![if !supportFootnotes]><![endif]> Another reason for the court’s solicitation of Baldus’ consilium is that Mita’s family may have appealed the judge’s decision to torture her.<![if !supportFootnotes]><![endif]> Of course both possibilities are speculation. What we can say 600 years later is that Baldus wrote a very poor opinion if one were to judge it according to the procedural norms of his time.
At the end of his consilium made two contradictory observations: first Mita’s journeys into the night betrayed her guilt. Her scurrying through the dark shadows of the city resembled the skulking of wolves and foxes. Her behavior demanded torture.<![if !supportFootnotes]><![endif]> However, he warned the judge that he should exercise care when he tortured Mita. If she did not confess during torture she should be completely exonerated.<![if !supportFootnotes]><![endif]> His conclusion seems to contradict his opinion in his discussion of Queen Sibílla, and the common opinion of the jurists. They generally believed that the evidence for torture should fall just short of absolute proof of guilt. Baldus’ conclusion belies his certain declarations of her guilt. My conclusion would be that Baldus was much more interested in protecting the judge than upholding Mita’s rights.
In contrast to the cases of Queen Sibílla and Mita, we have reams of documentation about one of the most famous murder trials of the entire period, the prosecution of Beatrice Cenci for the murder of her father, Francesco Cenci.<![if !supportFootnotes]><![endif]> 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 but scandalous. Francesco Cenci was a tyrant. He had a well-earned reputation for violence and sexual crimes against women and young boys. He imprisoned Beatrice and her stepmother Lucrezia 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 crude 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. Olimpio, who had fled, was murdered and escaped the courtroom.
The trial conformed to the norms of the Ius commune. The Cenci were one of Rome’s most ancient and noble families. Therefore, 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. Nonetheless, the evidence might have been enough to convict them if they had not been members of Rome’s highest nobility. However, only the prince’s command to permit torture could provide the incontrovertible proof that the court needed politically and jurisprudentially to condemn them. Still, 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.”<![if !supportFootnotes]><![endif]> 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 or confessions.<![if !supportFootnotes]><![endif]>
The trial dragged on and the judges could not conclude that the evidence was conclusive enough for a conviction. The case was probably further complicated in the minds of the judges by the rumors that circulated through the eternal city that Franceso had sexually assaulted Beatrice continuously. His “fama” for committing sexual crimes was well known.<![if !supportFootnotes]><![endif]> 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.<![if !supportFootnotes]><![endif]> 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 (Oh, me, oh, me, Virgin Mary please help me. Let me down and I will tell the truth).” She made a full confession. At this point in the trial, the Cenci sought out and employed the best criminal lawyer in Rome, Prospero Farinacci.
Farinacci (1544-1618) had devoted much thought to torture in his extraordinarily detailed treatment of the subject in his books on criminal procedure. 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.<![if !supportFootnotes]><![endif]> In spite of his difficulties, Pope Clement VIII reinstated him to the papal court in 1596.<![if !supportFootnotes]><![endif]> He began his most important work, Praxis et theorica criminalis, in 1581 and put the finishing touches on it by 1601.<![if !supportFootnotes]><![endif]> However, even a brilliant lawyer could not save Beatrice. Patricide, even of a brute, was a crime that could not be excused for reasons that might persuade a court today (except in Texas and Virginia). Especially when Pope Clement VIII may have been determined to confiscate the properties of the Cenci.<![if !supportFootnotes]><![endif]>
Farinacci and the jurists knew full well that judges did not always follow the norms of the Ius commune when they ordered torture in their courtrooms. In his treatise, Farinacci quoted Sebastiano Rolandi (ca. 1600) that modern judges substitute their wills in the place of evidence when they ordered torture. Princes should not tolerate this miscarriage of justice.<![if !supportFootnotes]><![endif]> He also reminded his readers that torture should also be inflicted only when there was sufficient evidence. Otherwise, the evidence produced by torture was invalid.<![if !supportFootnotes]><![endif]> From the information we have, Farinacci would not have objected to the court having tortured the Cenci. On the contrary, if they had not been nobles and women, they would have been tortured when they were first summoned to the court, or the judges would have considered the evidence “indicia certa et indubitata” if they had not been members of the noble class.
As it was, Farinacci did not have much upon which he could build a defense. Perhaps the most interesting document in the case is a consilium that Farinacci wrote in defense of Beatrice and the other accused.<![if !supportFootnotes]><![endif]> On the same day she had been tortured, Beatrice met her lawyer (10 August, 1599). As we know from his consilium that he must have presented to the court, Farinacci tried to construct a defense around Francesco’s brutal treatment of Beatrice and his wife, and his purported incestuous advances to Beatrice. But there was too little solid evidence. As he seems to concede in his consilium, Farinacci could make general arguments in Beatrice’s defense but was not able to offer witnesses who could confirm Beatrice’s accusations and the rumors. The court questioned why Beatrice did not accuse her father when the abuse happened and why there was an interval between the abuse and the murder. Her case would have been much stronger if she had immediately complained about her father and killed him when he had abused her. Farinacci deflected these questions as best he could.<![if !supportFootnotes]><![endif]> In spite of Farinacci’s efforts, Beatrice was convicted of patricide. On 11 September 1599 Beatrice, Giacomo and Lucrezia were beheaded in the shadow of the Castel Sant’Angelo. Probably because Bernardo was only twelve, he was sent to the galleys. The pope confiscated all the Cenci properties.
The story of Artemisia Gentileschi’s torture during her trial has been told by historians, novelists, and filmmakers.<![if !supportFootnotes]><![endif]> Surprisingly, in spite of the lavish attention which her story has received, some scholars have misunderstood the role that torture played in her trial. The complete transcript of her trial has been published.<![if !supportFootnotes]><![endif]> There are French and English translations. Art historians rediscovered Artemisia and her father, Orazio in the 1980’s. A large exhibition of her and Orazio’s works was greeted with great acclaim in Europe and North America in the early twentieth century.<![if !supportFootnotes]><![endif]> Artemisia painted a number of self-portraits and challenged, and possibly even equaling, Caravaggio’s vision of Judith and Holofernes with a stunning painting of her own.<![if !supportFootnotes]><![endif]>
When Artemisia (born in 1593) was in her late teens and working in her studio, she was visited by Agostino Tassi who had been her father’s friend. He was a painter of mediocre talent who had a keen interest in Artemisia. She had shown remarkable talent for painting at an early age. Although she had great talent, Orazio did not school her; she could read but little and write not at all.<![if !supportFootnotes]><![endif]> She began painting when she was in her teens. Much of her work was in the workshop of her father and in collaboration with him. Her earliest known painting of “Susanna and the Elders,” signed by Artemisia and dated 1610, reveals an artist with her own style and a mature talent.<![if !supportFootnotes]><![endif]> The painting displays so much maturity that scholars have argued about how much of her father’s brush can be found in it.<![if !supportFootnotes]><![endif]>
Tasso came to Gentileschi’s studio under the pretext, one unreliable witness stated, of teaching her perspective.<![if !supportFootnotes]><![endif]> Instead of (or in addition to) teaching her how to paint, he raped her. Artemisia’s testimony was very different. She told a story of a woman, Donna Tuzia, who rented an apartment in Gentileschi’s house, and who, she claimed, pressed Tassi’s amorous suit on her. Tuzia connived to arrange Tassi’s meetings with Artemisia. Finally, one day Tassi managed to enter Artemisia’s studio where she was painting a portrait of one of Tuzia’s sons. Tuzia was in the room but left when Tassi told her to leave. Artemisia was not feeling well. They walked around the room several times, until Tassi pushed her into her bedroom, locked the door, threw her on her bed, forced his way through her layers of clothing, and pushed his penis into her vagina. In her testimony to the court at her home Artemisia told the officials of the court that before Tassi entered her, she had grabbed his penis with such force that she ripped some skin from it. That did not stop him. After he had ejaculated he told her that he would marry her as soon as he could arrange his affairs. He warned her that if he married her she should be a good wife. Artemisia confessed that his promise reassured her and that afterwards she had intercourse with him many times.<![if !supportFootnotes]><![endif]> He constantly repeated his promise to marry her. He also gave her a ring to signify his commitment to Artemisia. She did not know then, she told her questioners, that he already had a wife.
Tassi’s crime was “stuprum,” which was the technical term in the Ius commune term for raping a virgin. It could be committed only against virgins and widows who were of good reputation.<![if !supportFootnotes]><![endif]> Men could also commit “stuprum” against boys. If it could be proven that a woman had loose morals, the accusation of “stuprum” could not be made. If a woman were married and her morals were unimpeachable she could not accuse her rapist of “stuprum.” There was one other significant procedural rule governed trials of “stuprum”: the testimony of one witness could be accepted by the court instead of the normal two witnesses concerning the rape and the woman’s reputation.
The penalty of death and definition for “stuprum” were taken from ancient Roman criminal law. In the first half of the twelfth century, King Roger II of Sicily († 1154) promulgated a constitution that punished men who committed “stuprum” by death even if they raped the woman with the intention of marrying them, “unless royal censure decided otherwise.”<![if !supportFootnotes]><![endif]> Almost a century later Emperor Frederick II († 1250) placed Roger’s constitution in his compilation of laws. He omitted, however, Roger’s ameliorating clause that the king might render a judgment other than death. In a second constitution Frederick noted that although there was a custom in the Kingdom of Sicily that those who raped with the intention to marry the woman were exempted from the death penalty, he decreed that Roger’s exemption was completely removed.<![if !supportFootnotes]><![endif]> Marinus de Caramanico noted in his commentary on Frederick’s Constitutions that although secular law dictated death, canon law absolved that penalty if the woman’s dissent turned into assent.<![if !supportFootnotes]><![endif]> In 1332 King Robert II of Sicily († 1343) derogated the penalty of death and instituted the confiscation of property, sparing the children of the perpetrator from losing their share of the patrimony that was due to them by the law of nature and Roman law.<![if !supportFootnotes]><![endif]> Finally, by the sixteenth century the jurists had decided that the death penalty was justified if the rape was violent but adopted the canonical norm for rapes that led to marriage.<![if !supportFootnotes]><![endif]>
When Orazio brought suit against his old friend Agostino Tassi for “stuprum” on behalf of his daughter, his trump card was that Tassi had not married her. Orazio and Artemisia had waited about nine months for Tassi to fulfill his promise. When he did not, Orazio took him to court. It is not clear what Orazio’s purpose was: marriage or revenge. The record cannot be read to justify one or the other conclusion. One conclusion is clear: as long as Tassi kept promising to marry Artemisia, their continuing sexual congresses brought no shame to her.<![if !supportFootnotes]><![endif]> She could hold her head high, and Orazio could not fault her or Tassi.
Something changed that equilibrium between March 1611 when Artemisia was raped and May 1612 when the trial began. We do not know when the change took place or what caused it. It is clear, however, that Tassi no longer wanted to marry Artemisia. The trial transcript is a lachrymose record of Tassi’s betrayal of his promise. Artemisia still held some hope that he would return to her. Even at the end of her testimony Artemisia gave signs that she would have taken Tassi back.<![if !supportFootnotes]><![endif]>
The trial transcript reveals two indisputable points: Tassi lied and contradicted himself in his testimony, and he suborned witnesses to testify that Artemisia was a woman of loose morals. If he had been able to establish her “infamia” as a woman who had many lovers, the court would have dismissed the charge of “stuprum.” The major piece of evidence that convicts Tassi and his witnesses, especially Nicolò Bedoni, of bearing false witness were the letters that they claimed she had written. That was a particularly maladroit attempt to present proof of Artemisia’s loose morals since she could easily prove that she could not write and could barely read. The weakness in Orazio’s accusation was the long time during which Artemisia and Tassi were lovers. Even if the rape were as violent as Artemisia described it, the court would not have necessarily convicted Tassi of “stuprum” because of Artemisia’s acceptance of Tassi as a lover and a future husband for many months. Dissent had evolved into assent, as the jurists would have understood the situation. That fact would have most likely wiped Tassi’s slate clean.<![if !supportFootnotes]><![endif]>
One key legal problem remained for Artemisia. Tassi, Bedino and other witnesses had sullied Artemisia’s reputation. The evidence they presented to the court would have given her the status of “infamis.”<![if !supportFootnotes]><![endif]> If Artemisia were declared “infamis” she would have been vulnerable to future sexual assaults and would have had no legal recourse. From the court’s point of view she would have the status of a whore — against whom “stuprum” cannot be committed. Tassi and others tried to present exculpatory evidence by giving evidence that Artemisia was fair game because she had had sexual relations with many men. Consequently, it was probably clear to Artemisia and abundantly clear to the court that she must verify her testimony. She was asked whether she would submit to the mildest form of torture, the “sibila.” This form of torture was designed for women and was performed by wrapping a cord around each finger. The cord was then tightened. Artemisia consented to the “sibila.” Her consent was necessary because her testimony was consistent. The Ius commune dictated that witnesses could be tortured only if their testimony were not consistent.
The trial record is poignantly touching when it reports Artemisia’s torture. The court placed Artemisia and Tassi in the same room and confronted each with questions about their testimony. The jailer was summoned to place the cord around each finger. As the jailer winched the cord around her fingers, Artemisia called out:<![if !supportFootnotes]><![endif]>
“It is true, it is true, it is true, it is true, it is true (what I have said).”
(To Tassi) “This is the ring that you gave to me and these are the promises that you made.”
(Tassi responded) “You lie through your teeth.”
(Artemisia answered) “It is the true, it is the truth.”
When Artemisia remained constant in her testimony the judge commanded that the “sibila” be removed after it had been applied for one “Miserere.”<![if !supportFootnotes]><![endif]>
Several months later the suborned witness, Nicolò Bedino, was also tortured with “La corda” because his testimony was so blatantly inconsistent with the facts and with the testimony of other witnesses.<![if !supportFootnotes]><![endif]> He held up very well under torture. To every question put to him, he declared that he had told the truth. The trial record does not tell us whether Tassi was asked to submit to torture. After Bedino was tortured the trial record seems to have ended. There was a very good legal reason why there may not be more to the record than what we have. Bedino’s testimony had been confirmed by torture; Artemisia had also used torture to validate her testimony. When confronted with testimony that we characterize today as “he said, she said,” the court had very little choice but to end the proceedings without a conviction or a sentence.<![if !supportFootnotes]><![endif]>
How do these cases of torture look to us today in our distant mirror? Are they worth our time reflecting upon? The reader will anticipate my answer of “yes.” In spite of a distance of several centuries and a different society and legal system, these cases contain much for us to think about. The most obvious conclusion is that human beings torture other human beings only when they feel most threatened. In our age of nuclear weapons and terrorists have replaced heresy and magic. From our point of view these former reasons seem rather quaint to torture anyone. We also like to think that certain classes of people, like citizens, are exempt from torture. The jurisprudence of the Ius commune also exempted pregnant women, nobles, and children, but as we have seen, political and economic interests — and fear — could trump those privileges, as they have in the first decade of the twenty-first century. These four cases suggest that people have been inclined to believe in the efficacy of torture as a mode of proof and a means to discover the truth for centuries (e.g. Baldus, Artemisia), in spite of the evidence to the contrary (e.g. Nicolò Bedino). But, as the historical record demonstrates and as jurists over the centuries have argued, torture is a very fallible instrument for learning the truth.<![if !supportFootnotes]><![endif]> That is a fact of which we need, it seems, to be reminded again and again.
<![if !supportFootnotes]> <![endif]> Borrowing from Barbara Tuchman’s A Distant Mirror: The Calamitous 14th Century (New York 1978). It is not by chance, however, that the flagship journal of the Medieval Academy of America is Speculum.
<![if !supportFootnotes]> <![endif]> Gabrielle M. Spiegel, “‘Getting Medieval’: History and the Torture Memos,” Perspectives on History (American Historical Association, September 2008) 3-6.
<![if !supportFootnotes]> <![endif]> I have written two essays that discussed the history of torture: ATorture and Fear: Enemies of Justice,@ Rivista internazionale di diritto comune 19 (2008) 203-242 and “Torture in the Ius commune,” Mélanges en l’honneur d’Anne Lefebvre-Teillard, ed. Bernard d’Alteroche, Florence Demoulin-Auzary, Olivier Descamps, Franck Roumy (Paris: Éditions Panthéon-Assas, 2009) 813-838. The essays have overlapping material and contain a condensed version of two of these four trials discussed in this essay (Sibílla and Beatrice). In order, however, to understand the jurists’ thought on torture completely, it would be necessary to read those essays in conjunction with this one.
<![if !supportFootnotes]> <![endif]> The infamous rack that I use in my title and which is the subject of many paintings was often used in punishments or in the imaginations of painters portraying the grisly deaths of martyrs but never appears, as far as I know, in court records that provide evidence about the use of torture in the judicial process.
<![if !supportFootnotes]> <![endif]> For the life and works of Baldus, see my essay, “Baldus de Ubaldis”, Rivista internazionale di diritto comune 8 (1997) 35-61 and Hermann Lange and Maximiliane Kriechbaum, Maximiliane, Römisches Recht im Mittelalter, 2: Die Kommentatoren (München 2007) 749-795.
<![if !supportFootnotes]> <![endif]> 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 Sibílla is true since it was reported by a late fifteenth-century source. He conjectures that another Sibílla Fortià, who was tried for witchcraft ca. 1412-1416, might be the Sibílla 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) who said that Queen Sibílla was tortured.
<![if !supportFootnotes]> <![endif]> Biblioteca ApostolicaVaticana, 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. Baldus wrote a number of consilia discussing torture that were cited by later jurists: Book 1.95, 259, Book 3.77, 78, 429, Book 5.97, among others.
<![if !supportFootnotes]> <![endif]> Modern equivalents of older currencies are arbitrary, but several million contemporary American dollars would not be an exaggeration.
<![if !supportFootnotes]> <![endif]> Ibid.: “Et primo quod in tortura caute illustris regine requiruntur indicia certa et que non possunt in dubium reuocari utrum sint indicia necne.”
<![if !supportFootnotes]> <![endif]> 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.”
<![if !supportFootnotes]> <![endif]> 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.”
<![if !supportFootnotes]> <![endif]> Ibid. fol. 96r: “Item dicit Albertus Magnus lib. xv. de proprietate rerum quod libera gens est cui libera mens et libera lingua.”
<![if !supportFootnotes]> <![endif]> 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.”
<![if !supportFootnotes]> <![endif]> 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).
<![if !supportFootnotes]> <![endif]> 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. 188.8.131.52). 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).”
<![if !supportFootnotes]> <![endif]> Ibid. fol. 196v. The text of the second part of the consilium begins on a new folio and may be an independent text.
<![if !supportFootnotes]> <![endif]> (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.
<![if !supportFootnotes]> <![endif]> See the recent overview of the literature and the complex historical situation in which generalizations are difficult, by Malcolm Gaskill, “The Pursuit of Reality: Recent Research into the Hisstory of Witchcraft,” The Historical Journal 51 (2008) 1069-1088. Also Raisa Maria Tovio, Witchcraft and Gender in Early Modern Society: Finland and the Wider European Experience (Aldershot 2008), Edward Bever, “Witchcraft Prosecutions and the Decline of Magic,” Journal of Interdisciplinary History 40 (2009) 263-293. There is a large anthropological literature. A recent intriguing example of the dangerous woman in Brazil is described by Kelly E. Hayes, “Wicked Women and Femmes Fatales: Gender, Power, and Pomba Gira in Brazil, History of Religions 48 (2008) 1-21.
<![if !supportFootnotes]> <![endif]> Baldus, loc. cit.: “Illud etiam constat quod in maleficiis non priuilegiatur dignitas . . . Quinimmo honor aggrauat maleficium.”
<![if !supportFootnotes]> <![endif]> Ibid.: “An autem sit possibile quod aliqui malefici noceant hominibus per incantationem et an possint immutare sensum ipsius? Dicendum est quod sic, permittente Deo, cuius iudicia occulta nescimus.”
<![if !supportFootnotes]> <![endif]> The validity of confessions outside the courtroom had been debated since the twelfth century; see my essay “The Beginning of Roman Law Jurisprudence and Teaching in the Twelfth Century: The Authenticae,” Rivista internazionale di diritto comune 22 (2011) nn. 48-58.
<![if !supportFootnotes]> <![endif]> Pennington, "A Note to Decameron 6.7: The Wit of Madonna Filippa," Speculum 52 (1977) 902-905; Boccaccio tells the story of a Florentine woman who was accused of adultery but who had been caught in “flagrante delicto.”
<![if !supportFootnotes]> <![endif]> Baldus de Ubaldis, Consilia 5.427 (Milan 1494) unfoliated, (Lyon 1550) fol. 81r: “Quedam mulier nomine domina Mita, uxor cuiusdam Mutii, fuit accusata de adulterio per virum suum et contra eam inducitur unus testis deponens super facti veritate, et tres testes asserentes ipsam feceisse quamdam confessionem extra iudicium coram presbytero, quorum testium duo probantur: unus pater, alter frater accusatoris. Queritur an faciant indicium ad torturam sufficiens?”
<![if !supportFootnotes]> <![endif]> Ibid.: “Videtur certum quod ista mulier est suspectissima ratione temporis quia tenebre noctis aptiores sunt.”
<![if !supportFootnotes]> <![endif]> Ibid.: “et si queritur amice ad quid venisti, non est bona excusatio nec verisimilis quod fuerit (iuerit edd.), nisi ad malefaciendum, iuxta illud qui male agit, odit lucem.”
<![if !supportFootnotes]> <![endif]> Ibid.: “Ad hoc textum qui dicit quod ex confessione extra iudicium facta, parte absente, cum uno teste de veritate probatur vehemens aminiculum, ut extra de succes. ab intest. c. Cum dilectus (X 3.27.3). Item delicta que fiunt in domo probantur per domesticos, ut C. de repud. l. Consenu (Cod. 5.17.8).
<![if !supportFootnotes]> <![endif]> Ibid.: “Quibus rationibus et aliis que iuste possunt allegari motus puto quod iuste fuerit pronunciatum mulierem torquendam esse et interrogandam . . . Dicet aliquis suspectis testibus non creditur, sed isti sunt suspecti quia consanguinei accusatoris . . . Sed hoc non obstante quia non agitur hic de proprio interesse, puto quantum ad indicia verum esse quod dixi quia multi testes in eamdem sententiam consonant et quia adultterium totam cognationem denigrat et maculat. Porro de tormentis non potest dari una determinitata regula quia valde consistunt in arbitrio iusdicentis cuius fidei et auctoritati negotium discutiendum committitur.”
<![if !supportFootnotes]> <![endif]> Three essays in The Politics of Law in Late Medieval and Renaissance Italy, ed. Lawrin Armstrong and Julius Kirshner (Toronto Studies in Medieval Law, 1; Toronto-Buffalo-London 201) discuss the legal process of sindicatio.
<![if !supportFootnotes]> <![endif]> Pennington, “Torture and Fear” 220-221.
<![if !supportFootnotes]> <![endif]> Baldus de Ubaldis, Consilia 5.427 (Milan 1494) unfoliated, (Lyon 1550) fol. 81r: “At om questione proposita nos videmus quod per motionem et vestigia pedum significatur qualitas lupporum et vulpium. Sic dico in proposito per ambulare de nocte ad loca suspecta et per personas suspectas et a suspitionibus torture ceperunt et necessarie sunt, ut C. de dolo, Dolum, in verbo ‘ex persipicis inditiis’ et ex semita pedum congoscitur ude transivit latro (Cod. 2.206).” The citation to the Codex does not support Baldus’ point, except in the most general way.
<![if !supportFootnotes]> <![endif]> Ibid.: “Conclusio est quod dicta mulier debet torqueri, sed si perseveret in tormentis et semper neget purgata est per susceptionem tormentorum et debet absolvi tanquam non probatum.”
<![if !supportFootnotes]> <![endif]> See Beatrice Cenci: La storia il mito, ed. Mario Bevilacqua and Elisbetta Mori (Rome 1999) 61-79, whose bibliography cites the older, extensive literature. See also Belinda Jack, Beatrice’s Spell: The Enduring Legend of Beatrice Cenci (London 2004), whose account is not always accurate.
<![if !supportFootnotes]> <![endif]> Cited by Richard 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 at 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.
<![if !supportFootnotes]> <![endif]> Ibid. 41-42 and 56. See also Gandinus’ discussions of “indicia indubitata” in Hermann U. Kantorwicz, Albertus Gandinu und das Straftrecht der Scholastik (2 vols. Berlin-Leipzig 1907-1926, reprinted 1978) 2.90-98.
<![if !supportFootnotes]> <![endif]> For the important of “fama” in criminal trials see Federico Migliorino, Fama e infamia: Problemi della società medievale nel pensiero giuridico nei secoli XII e XIII (Catania1985).
<![if !supportFootnotes]> <![endif]> “La corda” was the most commonly used type of torture in the pre-modern period. It consisted of raising the victim by a rope from the victim’s wrists that were tied behind his or her back. The earliest illustration of La corda is a splendid illumination in Biblioteca Apostolica Vaticana lat. 1430, fol. 179r, Justinian's Codex, Book 6, title 1, Chapters 1-4, ca. 1325-1350, under the title, De fugitivis servis. The image can be viewed at:
The severity of the torture with “La corda” was regulated by the length of time the victim must endure it. The judge would instruct the torturer to inflict the torture for the length of time needed to recite a common liturgical prayer.
<![if !supportFootnotes]> <![endif]> 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. See portraits of Farinacci and Beatrice at: http://faculty.cua.edu/pennington/SantaBarbaraTorture/Farinacci2.htm
<![if !supportFootnotes]> <![endif]> See Beatrice Cenci: La storia, il mito.
<![if !supportFootnotes]> <![endif]> 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.
<![if !supportFootnotes]> <![endif]> Irene Fosi, Papal Justice: Subjects and Courts in the Papal State, 1500-1750, trans. Thomas V. Cohen (Washington, D.C.: The Catholic University Press of America, 2011) 87-88 overstates Pope Clement VIII “ruthlessness” and his “thirsting for blood and money.” As my description of the case makes clear, this was not an unbridled rush to judgment.
<![if !supportFootnotes]> <![endif]> Prrospero Farinacci, Praxis criminalis libri duo (Frankfurt am Main: 1606 and 1622 [these editions have the same pagination]) Book 1, title 5, Quaetio 37, p. 575: “Roland. consilium 12. num. 31 volum. 3, ubi testatur de magis communi opinione, et num 34, ubi valde invehit contra iudices modernos, qui suum velle loco indiciorum subrogantes ut plurimum velo levato homines torquent, dicitque tales iniquos iudices minime fore a superioribus et Principibus tolerandos, Clarus <Giulio Claro> in practica <Practica criminalis> § finali quaest. 64 versi. “dixi etiam” ad medium, ubi quod ex Bologn. in addit. ad Guid. de Suzar. in tract. de torment. num 29. nullus discrepat a proposita regula. Idem Claus ibid. in versi. “dixi quoque,” ubi admonet iudices Deum timentes, ut semper prae oculis habeant, ne aliquem tormentis subiiciant non solum sine iudiciis, sed nec etiam cum indiciis nisi legitima et sufficientia fuerit.”
<![if !supportFootnotes]> <![endif]> Farinacci repeats again and again that confessions made under torture are invalid if there are not “indicia sufficientia,” e.g. Ibid. p. 587: “Vt sine legitimis praecedentibus indiciis iudex, nec leviter quidem potest reum torquere, immo nec terrere, quia metus torquendi aequparatur torturae, et paria sunt quem confiteri per torturam vel metu torturae . . . quod torquendi metus dicitur incussus reo si fuerit ligatus 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 dominorum opinio.” One of the consequences of juristic thought and norms was that torture was used much less frequently in medieval and early modern courts than scholars have thought; see Pennington, “Torture and Fear” 226-227 and passim.
<![if !supportFootnotes]> <![endif]> Prospero Farinacci, Consilia sive responsa atque decisiones causarum criminalium (Colonia 1649) Consilium 66, p. 418-
<![if !supportFootnotes]> <![endif]> Prospero Farinacci, Consilia sive responsa atque decisiones causarum criminalium, Tomus Primus (Cologne: 1649), consilium 66, pp. 418-419: “licet Beatrix Cincia Francisci patris necem impie procuraverit, si tamen verum est . . . et male tractando illius pudicitiam violare tentaverit . . . Ergo multo magis excusanda videatur Beatrix, quae patrem delinquentem et stuprum committere volentem occidit . . Nec dicat fiscus, quod si Beatrix tentata fuit de stupro a patre, debebat patrem non occidere, sed accusare . . . Nec etiam dicat idem fiscus (prout sic dicentem mihi ipsi illum videre videor) quod praedicta omnia procedunt, si Beatrix tempore tentati seu commissi stupri in ipsum manus intulisset; secus autem si ex intervallo.” Farinacci then defended Beatrice with complicated arguments about when patricide is justified. See below for a definition of “stuprum” in the Ius commune.
<![if !supportFootnotes]> <![endif]> An excellent study by Mary D. Garrard, Artemisia Gentileschi: The Image of the Female Hero in Italian Baroque Art (Princeton, New Jersey 1989); Elizabeth S. Cohen, “The Trials of Artemisia Gentileschi: A Rape as History,” Sixteenth Century Journal 31 (2000) 47-75; A novel by Alexandra Lapierre, Artemisia: Un duel pour l’immortalité (Paris 1998, translated into English by Liz Heron, London-New York 2000) and a film that significantly distorts the story, Artemisia, directed by Agnes Merlet (French 1998).
<![if !supportFootnotes]> <![endif]> The transcript of the trial in Rome, Archivio di Stato, Tribunale Criminale del Governatore di Roma, processo 7, busta 104, pp. 1-340 and has been printed by Eva Menzio, Artemisia Gentileschi Lettere precedute da Atti di un processo per stupro(Milan 1981; reprinted Carte d'Aristi, 55; Milan 2004; translated into French by Marie-Anne Toledano, Actes d'un procès pour viol en 1612 suivis des lettres de Artemisia Gentileschi Paris 1983). A very good English translation was published by Garrard, Artemisia Gentileschi, Appendix B pp. 403-487.
<![if !supportFootnotes]> <![endif]> Keith Christiansen and Judith W. Mann, Orazio and Artemisia Gentileschi (New Haven-London 2001), the catalogue for exhibitions in Rome, October 2001 to January 2002, New York February-May 2002, and Saint Louis June-September 2002.
<![if !supportFootnotes]> <![endif]> Examples of Artemisia’s work can be seen at:
<![if !supportFootnotes]> <![endif]> She responded to the judges about letters that she was accused of writing: “io non so scrivere et poco leggere,” Garrard, , Artemisia Gentileschi 463.
<![if !supportFootnotes]> <![endif]> Displayed in the New York and Saint Louis exhibitions; Orazio and Artemisia no. 51, pp. 296-299.
<![if !supportFootnotes]> <![endif]> Mann, “Artemisia and Orazio Gentileschi,” Orazio and Artemisia 249-281 at 253.
<![if !supportFootnotes]> <![endif]> The witness, Nicolò Bedino, had been an apprentice of Orazio Gentileschi. His testimony was clearly suborned.
<![if !supportFootnotes]> <![endif]> Cohen’s ruminations, “Trials of Artemisia” 72, that Artemisia was angry at her father because “he did not respond promptly or ardently” to her rape misreads the case; Cohen would be right if Artemisia had rejected Tassi’s offer to marry her.
<![if !supportFootnotes]> <![endif]> I find Elizabeth Cohen’s analysis of the rape and the trial unpersuasive in general, but most importantly for this essay she also does not understand norms of the Ius commune and the procedural rules that governed trials of “stuprum.” Among other matters that I will point out below, she thinks that the indictment of stuprum can only be brought in rapes where the woman is a virgin; “Trials of Artemisia” 59.
<![if !supportFootnotes]> <![endif]> Ortensio Zecchino, ed. Le assise di Ariano: Testo critico, traduzione e note (Cava dei Tirreni 1984) 34.
<![if !supportFootnotes]> <![endif]> Wolfgang Stürner, ed. Die Konstitutionen Friedrichs II. für das Königreich Sizilien. (Monumenta Germaniae Historica, Constitutiones et Acta Publica imperatorum et Regum, 2 Supplementum. Hannover 1996) 173-174.
<![if !supportFootnotes]> <![endif]> Marinus de Caramanico, Commentary toConstitutiones Frederici secundi (ca. 1278-1285),ed. Lyon: 1534, Book 1 Title 20, fol. 49-50: s.v. Si quis rapere: Haec constitutio quae punit raptores sacrarum virginum continet ius commune. Title 22: s.v. Capitalem: Sed iure canonico secus est, quia potest contrahere rapta eum raptore si prior dissensus transeat in consensum, ut extra de rapt. c. Accedens, cum suis similibus (X 5.17.7).
<![if !supportFootnotes]> <![endif]> King Robert II of Anjou, Statutum 26 October, 1332: “Iubemus expressius contra delinquentem in huiusmodi casibus . . . ad punitionem condignam et debitam . . . quod si comparuerit in iudicio evocatus et convictus fuerit probatione legitima digna sententia condemnetur . . . Si fuerit paterfamilias hic delinquens bona omnia tam mobilia quam immobilia . . . fisci nostri commodis protinus applicentur. Legitima tamquam iure naturae debita eius filiis si quos habet . . . sine diminutione servata,” Capitula regni utriusque Siciliae ritus magnae curiae vicariae et pragmaticae (Neapoli 1773) 116-119.
<![if !supportFootnotes]> <![endif]> Tommaso Grammatico, Additiones et apostillae super Constitutionibus Regni utriusque Siciliae (Venetiis 1562) to Book 1 Title 20, fol. 19r: “Et quod requiritur interventus violentiae ad hoc, ut poena capitis locum habeat in raptu . . . et quod poena iuris civilis hodie sit sublata per ius canonicum subsequuto matrimonio tenet pulchre Lucas de Penna in versiculo 'Mulieres' versiculo 'Sic dicimus' C. de incolis lib. 10 [Cod. 10.40(39).9]. Grammatico († 1556) was a distinguished sixteenth-century jurist who recorded a number of cases of ‘stuprum” in his writings.
<![if !supportFootnotes]> <![endif]> Cohen, “Trials of Artemisia” 58, does not understand that the long standing custom established in the Ius commune of allowing women to marry their rapist was not negated by the Council of Trent. Trent only decreed that marriages must take place “in facie ecclesiae.” The norms of the Church were not “rigorous” in this case.
<![if !supportFootnotes]> <![endif]> This is the one point that the film about Artemisia gets right.
<![if !supportFootnotes]> <![endif]> Cohen, “Trials of Artemisia” 66-71 completely misinterprets the law and the record.
<![if !supportFootnotes]> <![endif]> See in general Migliorino, Fama e infamia passim and in particular Edward Peters, “Wounded Names: The Medieval Doctrine of Infamy,” Law in Medieval Life and Thought, eds. Edward B. King and Susan J. Ridyard. (Swannee 1990) 43-89.
<![if !supportFootnotes]> <![endif]> Garrard, Artemisia Gentileschi 462 and Lapierre, Artemisia (French edition) 451: “Tunc dominus mandavit per custodem carcerum accomodari sibila et iunctis manibus ante pectus et inter singulos digitos sibilis accomodatis de more et secundum ususum . . . coepit dicta adduca dicere: ‘é vero, é vero, é vero, é vero,” pluries atque pluries praedicata verba replicando et posteas dixit: ‘Questo é l’annello che tu mi dai et queste sone le promesse.’ . . . Interrogante dicto adducto et dicente: ‘Non é vero, tu ne mente per la gola.’ Replicante dicta adducta: ‘é vero, é vero, é vero.’ Dominus ambabus in eorum dicta permanentibus mandavit disligari sibila et amoveri e manibus, cum stetisset accomodata per spatium unius “Miserere,” et deinde licentiavit dictam adductam.”
<![if !supportFootnotes]> <![endif]> Persons were tortured for the length of a prayer: An “Ave Maria,” a “Pater Noster,” or in this case, a short “Miserere nobis.” Garrard mistranslates this sentence because the editors of the text put a period in the wrong place.
<![if !supportFootnotes]> <![endif]> Garrard, Artemisia Gentileschi 487. Garrard, p. 405, interprets the evidence that Bedino was also tortured with the “sibila.” The text clearly states that the device was La corda. “Sibila” was only used for women, the weak, the young, and minor crimes.
<![if !supportFootnotes]> <![endif]> Cohen, “Trials of Artemisia” 72, asserts that Tassi was convicted of “stuprum.” There is no evidence for her conclusion. “Stuprum” was a very serious crime and still could carry the death penalty in the sixteenth century. Other penalties included exile and fines. If Tassi had been convicted, there would have been a punishment. However, from what we know about Tassi after the trial, there was none.
<![if !supportFootnotes]> <![endif]> I refer to my essays cited in footnote 3 in which I make an extended argument to justify this generalization.