Women on the Rack:  Torture and Gender in the Ius commune

Kenneth Pennington

The Middle Ages is a Distant Mirror.[1]  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.[2]  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.[3]  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.[4]   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.[5]  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.[6] 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.[7]  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.[8]  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.[9]  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.[10]  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.[11]   Baldus then turned to a Christian theologian: “As Albertus Magnus said, a free person must have a free mind and a free tongue”[12]. 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.”[13] Baldus’ solution to whether Sibílla should have been tortured reflects his well-known fear of offending princes — especially his own.[14] “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.”[15] In the second half of his consilium Baldus did make the point that even nobles could be tortured if they practiced magic.[16]  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.[17]  

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.[18]  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.[19]  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.[20]  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.[21]  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?[22]  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.[23]   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?[24]  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. [25]   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. [26]  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.[27] 

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.[28]

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.[29]  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.[30]  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.[31]  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.[32]  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.[33] 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.”[34] 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.[35] 

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.[36]  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.[37] 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.[38]  In spite of his difficulties, Pope Clement VIII reinstated him to the papal court in 1596.[39] He began his most important work, Praxis et theorica criminalis, in 1581 and put the finishing touches on it by 1601.[40]   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.[41] 

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.[42]   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.[43]  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.[44]  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.[45]  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.[46]  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.[47]  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.[48]  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.[49]

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.[50]  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.[51]  The painting displays so much maturity that scholars have argued about how much of her father’s brush can be found in it.[52]

Tasso came to Gentileschi’s studio under the pretext, one unreliable witness stated, of teaching her perspective.[53]  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.[54]  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.[55]  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.”[56]  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.[57]  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.[58]  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.[59]  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.[60]

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.[61]  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.[62]

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.[63]

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.”[64]  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:[65]

“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.”[66]

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.[67]  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.[68]

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.[69]  That is a fact of which we need, it seems, to be reminded again and again.