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A Delicate and Dangerous Business
The emergence of torture in Greek law
Twentieth-century people, although they may easily recognize the existence of privilege- or status-distinctions in institutions which profess to operate democratically and impersonally, often know little about societies – or earlier periods in our own history – in which privilege and status were the only elements that determined social identity, nor about the processes in early European societies that transformed them from communities based upon status distinctions to communities based upon shared rights. Yet in terms of legal history alone, these processes were fundamental to the emergence of the idea of ‘law’ itself and to the role of law and its incidents in social, cultural and political history ever since.
For, once the Greeks had succeeded in inventing the idea of an abstract ‘law’ (nomos) and the Romans had followed by inventing the first legal science, an entirely new element entered the history of human social relations. Citizens and historians alike have disputed its importance and character ever since. Individual incidents of legal procedure – not only torture, but the concept of evidence, the character of witnesses, and the functions of advocates and magistrates – thus emerged from earlier unarticulated custom, closely attuned to the needs of new cultures, but also leading those cultures in distinct directions. It is in this context that we must look for the emergence of torture as a distinct phenomenon.
At the beginning of the history of torture among the early Greeks we find for the first time in western history the transition from an archaic and largely communal legal system to a complex one in which the problem of evidence and the distinction between the free man and the slave are particularly striking. The problem of evidence had emerged from archaic Greek custom, in which the ‘law’ had consisted of the conflict between two litigants exercising self-help in a contest, an agon, surrounded by family, friends and dependents, guided only by themis, custom, and epikeia, appropriate behaviour. Themis and epikeia, the ‘rules’ of particular legal conflicts, came to be pronounced first by voluntary arbitrators, whose decisions in favour of one or the other party were called dikai, ‘statements’. These accumulated over time into a recognized body of opinion, until the popular perception of their abstract moral quality made the term dike come to mean Justice itself. These early legal conflicts probably made little use of evidence, just as they reflected little or no notion of crime as distinct from personal injury. Their outcome depended rather upon the social standing of the litigants and the opinion of the community’s most substantial members. The first personal offence was tort (civil injury to person, property, or reputation) rather than crime, and the ambition of the injured party was to have that injury acknowledged and made good.
The transformation of Greek society from the eighth to the fifth centuries BC included the shift from feud, or agon, to trial. The poet Hesiod, himself a disgruntled litigant, argued that for the sake of fairness laws should be written, that standards of judgement be clearly stated, and that the most frequent causes of disagreement be surrounded by witnesses who will later testify to fact. The importance of membership in a polis, a city-republic, was that it placed each citizen within a much broader legal context in which ‘the law’ was abstracted from the earlier web of particular events, relationships and experiences and made autonomus. No longer was ‘the law’ the outcome of a series of household-feuds. The law of the city began to displace the laws of household at the same time as private ethics was conceptually separated from public behaviour. Written law emerged almost as soon as the first recognizable city-republics, and written law defined procedure and characterized those who had different kinds of access to it.
By the sixth century BC, free citizens of the Greek city-republics willingly submitted to many restrictions on their personal actions that would have outraged Homer’s aristocratic warriors. But they submitted willingly because they knew the laws, respected those who administered them, and accepted that even legal procedure was generally beneficial, rather than coercive, to those who were free – and citizens. Those who possessed no ascertainable honour or citizenship status – strangers, slaves, those in shameful occupations, or those whose shame (atimia) was publicly acknowledged – possessed no right, neither the right not to be coerced nor the right to litigate.
Concepts of honour and status thus stratified Greek urban society. In the fourth century Aristotle summed up the development that he perceived over the preceding two centuries in the matter of legal protection. He observed that, in the early sixth-century reforms of Solon, no citizen could be made a slave for personal debt; certain acts could properly be prosecuted by the public; citizens might appeal from the decisions of magistrates to those of popular courts. These protections greatly strengthened citizenship status. They emphasized the citizen’s unique access to the law, the importance of his knowledge of it and its procedures, his obligation to plead his case in person, and his necessary experience of sitting in the assembly as a juryman himself. Such a citizen clearly possessed honour (time), and there were limits to the degree of coercion to which he might be subjected, as well as to the nature of evidence that might be used against him, or by him against another free citizen.
The honour of the citizen lent great importance to his sworn word. The doctrine of evidence itself may be said to have been defined by the importance of a citizen’s testimony. Therefore, one possessing no such citizen-status could not provide ‘evidence’ as the Greeks understood that term. The legal procedural protection of the free citizen and his sharp differentiation from other, far less privileged, classes of people led the Greeks to the conclusion that those without legal privilege had to be coerced into a special status in which their testimony became acceptable. Their testimony became equal to that of citizens by means of physical coercion. The origins of this notion are obscure, although they may lie in the power of a head of household over slaves and dependents. Originally, then, the importance of the honour of a citizen created a classification of evidence that distinguished between a ‘natural’ kind of evidence that might be obtained readily from the word of a citizen and a coerced kind of evidence that had to be extracted by force from everyone else.
This argument for the honour of the citizen may be illustrated by an event that took place in 415 BC. In that year a number of statues of the god Hermes were desecrated, outraging Athenian popular opinion and precipitating a large number of accusations against citizens. One of the accused citizens, Andocides, accused his own accusers of wanting ‘to abrogate the decree voted during the archontate of Skamandrios and to put to the torture those whom Dioclides has accused [of desecrating the Herms]’. Although nothing else is known of the ‘decree of Skamandrios’, it seems to have served as the charter of the citizen’s exemption from general legal disabilities, particularly torture, respected sufficiently to be cited in a case where there was great pressure to discover the culprits and, evidently, an explicit suggestion that some citizens’ exemption from torture be abrogated.
In the fifteenth chapter of his Rhetoric, Aristotle gives a list of five ‘extrinsic’ proofs that may be used in a legal process, besides the figures of rhetoric which may also be used: the laws, witnesses, custom, torture and oaths. Aristotle’s term for torture, and the general Greek term, is basanos, which is philologically related to the idea of putting something metallic to a touchstone in order to verify its content. Thucydides uses a very similar word to describe the work of the historian: the historian must work with a critical spirit and he must not simply accumulate all sorts of records without a critical principle, but must test them with a touchstone to be sure of their truth; he must inquire critically about them. ‘Judging from the evidence which I am able to trust after most careful inquiry …’ (Peloponnesian War, I.1) is Thucydides’ formulaic description of the historian’s task. Basanos, torture, evidently connoted a kind of necessary critical inquiry, but it was not the kind of inquiry that could be made of a free man. Put in slightly different terms, Aristotle’s basanos is a kind of inquiry whose results may serve as evidence in a sub-procedure within a larger legal procedure that is essentially adversarial but whose citizen-litigants may not be subjected to the sub-procedure of basanos.
Our sources for the history of evidence and procedure in Greece are unanimous on the question of who can be subjected to basanos: it is the slave and, under certain circumstances, the foreigner. The Greeks, however, left no works on civil or criminal procedure, and our chief sources for the torture of slaves are the legal orators and the comic playwrights. The former, in a series of written speeches to be delivered by their clients or to serve as models for forensic rhetoric, and the latter, in dramas that touch upon daily life, are not the lawyer’s nor the historian’s ideal sources, and there has been much scholarly dispute concerning the Athenian attitudes towards evidence derived from the torture of slaves and the frequency of their use of it. A well-known collection of speeches by the fifth-century orator Antiphon illustrates the general idea concisely: a choregus (one who was responsible for the civic duty of paying the chorus at religious festivals, and later at dramatic festivals as well), accused of murdering one of the boys who was trying out for a place in the chorus, describes the terms of investigation:
[My accuser] may take as many witnesses as he likes, examine them, examine witnesses who are freemen, as becomes the examination of freemen, and who, out of self-respect and justice are naturally disposed to speak the truth about the facts. In the case of slaves, he may interrogate them if their statements seem truthful to him. If their statements do not, I am prepared to deliver all my own slaves to him so that he may have them put to the torture. If he requires the testimony of slaves that do not belong to me, I promise, after having obtained the permission of their owner, to deliver them also to him so that he may put them, too, to the torture in whatever manner suits him.
There are a number of legal problems about this passage, one being that the choregus seems to be referring to an informal investigation designed to avoid a trial. In any case, the right of a citizen in a criminal (or indeed a civil) suit to demand the torture of slaves seems to have been generally accepted, whether in an informal exchange of investigations or in a trial proper. In another speech, Antiphon offers one reason for the practice of torturing slaves: a perjured slave cannot suffer the penalties of a perjured free man, that is, he cannot be declared legally infamous (atimos), with the attendant disabilities of that status, nor can he be fined. That slaves could be tortured is also clear from some papyrus evidence from Greek Egypt, which states that if judges cannot form an opinion after all the evidence is in, they may apply corporal torture to slaves after their testimony has been given in the presence of both parties to the case. That this was a general Greek practice is evident from the fact that the Roman emperor Hadrian cites it in a rescript (Digest 48.8.1.1) evidently derived independently from other Greek practice.
The modes of torture are described offhandedly in a scene from Aristophanes’ The Frogs. Dionysius, having changed places and dress with his slave Xanthias, has forgotten the right of a master to prove his own innocence by offering his slaves for torture. Shortly after they have changed places, Xanthias is accused of theft, and he sees a way out; he tells his accuser:
I’ll make you a fair offer;
Arrest my slave and put him to the torture,
and if you get your proof, put me to death.
Aiacos. What kind of torture?
Xanthias. Any kind you wish.
Tie him to a ladder, suspend or, whip him.
Pile rocks upon him, put vinegar in his nose,
Whip him with bristles: but not with leeks or onions.
But it is also possible that the speech reflects a considerable degree of exaggeration and that the very details of Xanthias’ panta tropon suggest that such a variety of tortures may have been more encyclopaedic in a comic sense than a description of actual practice.
It is also necessary to point out that the power of masters to punish slaves corporally was generally accepted among the Greeks, slaves sometimes being referred to as andrapoda – ‘human-footed stock’ – in contrast to tetrapoda – ‘four-footed stock’. Although Greek attitudes toward the proper treatment of slaves improved between the sixth and the third centuries, such a power on the part of masters suggests that it was not a long step to permit the judicial torture of slaves, since they were routinely subject to physical coercion of the most severe kind even outside the sphere of the law.
Although at least one scholar has claimed that torture of slaves was the survival of a type of ordeal that was only later worked into the Athenian rules of evidence, our earliest sources, the fifth-century Greek orators, refer to the interrogatory torture of slaves as if it were a commonplace. A well-known example of this literature is the following passage from the orator Isaeus:
Both personally and officially you regard torture as the surest test. Whenever freemen and slaves appear as witnesses, and it is necessary that fact in the case be discovered, you do not employ the testimony of freemen, but by torture of the slaves you seek to find the truth of the circumstances. And that is natural, men of the jury, for you know that some of the witnesses have appeared to give false evidence, but none of the slaves has ever been proved to make untrue statements as a result of their torture.
Such a statement implies an Athenian view of the reliability of torture that contrasts sharply with other aspects of Athenian culture. Indeed, this and similar statements in other orators have been dismissed as fictions, chiefly because there is also no evidence as to widespread or even customary torture of slaves in Athenian law. The same orators upon whose evidence for the torture of slaves we are forced to rely also imply that threats to torture slaves were part of the rhetorical display of the court and that some orators could also give perfectly plausible arguments against the truthworthiness of slave testimony. In short, the fifth and fourth centuries provide some ambiguous evidence that the judicial torture of slaves was acceptable in theory, but very little evidence either that many slaves were tortured or that Athenians thought very highly of such testimony.
But Greek law had two facets: on the one hand, a body of civil law was slowly built up possessing its own rules and procedures; on the other, the law was often in danger of being exploited for political reasons, and there is much more evidence that in political cases torture may have been more frequent than in routine civil or criminal litigation.
After the Athenian defeat at Syracuse in 413 BC, the Syracusans put the Athenian leader Nicias to death because, as Thucydides says, ‘certain Syracusans … were afraid … that on some suspicion of their guilt he might be put to torture and bring trouble on them in the hour of their prosperity.’ (Peloponnesian War, VII.86) The possibility that Nicias might have been tortured by the Lacaedemonians appears to have been a justified expectation of the Syracusans, perhaps because interrogatory torture under the extenuating circumstances of battle or capture by an enemy power was not part of the routine law of the Greeks and offered freer opportunities for torture and aggravated punishment.
The exceptional character of political life, whether in the hands of the enemy or in those of one’s political enemies at home, suggests that whatever the facts of slave torture, the torture of freemen proved to be exceptionally difficult, even in a period of general unrest such as had been the case in the desecration of the Herms. But the fear of the Syracusans over the possible incriminating testimony of Nicias was not unfounded in the political atmosphere of the fifth century. In 411, Phrynichus, a leading member of the oligarchy of the Four Hundred in Athens, was assassinated, and although the assassin, a soldier, escaped, an accomplice was taken and, as Thucydides says (Peloponnesian War, VIII.92), was tortured by order of the Four Hundred, although he revealed very little information under torture. Such irregular torture of freemen (although the victim of the Four Hundred was not an Athenian, but an Argive) seems to have been rare in Greece, perhaps the best-known case having occurred a century before in the torture of Aristogiton in 514 for his part in the assassination of the Peisistratid Hipparchus.
Torture in Roman law
Since Roman law, shaped by some Greek influences, constituted the greatest body of learned jurisprudence known to western tradition, its doctrine of torture influenced strongly the two revivals of torture that the western world has experienced – those of the thirteenth and twentieth centuries.
Briefly put, in the earliest Roman law, as in Greek law, only slaves might be tortured, and then only when they have been accused of a crime. Later, they might be tortured as witnesses, although with severe restrictions. Originally only a criminal accusation against a slave could elicit slave testimony, but by the second century, slaves could be tortured in pecuniary cases as well. Freemen, originally preserved from torture (and from the forms of capital punishment reserved for slaves), come under its shadow in cases of treason under the Empire, and then in a broader and broader spectrum of cases determined by imperial order. The division of Roman society into the classes of honestiores and humiliores after the second century AD made the humilioris class liable to the means of interrogation and punishment once appropriate only for slaves. And even the honestiores could be tortured in cases of treason and other specified crimes, as defendants and witnesses.
As in Greece, Roman slave-owners under the Republic had the absolute right to punish and torture their own slaves, when they suspected them of offences against themselves within their own property. This right was not abolished in Roman law until 240 AD, by a rescript of the emperor Gordian (Code 9.41.6). Cicero’s speech Pro Cluentio recounts a case in which Sassia, the mother-in-law of Cluentius Avitus, put one of her own slaves to torture in her own house. The slave confessed, was tortured a second time, and was then killed, Cicero argues, because of Sassia’s fear that he might retract his testimony elicited by torture. Such treatment of slaves seems to have been common in Rome, and led the great historian Theodor Mommsen to argue that Roman domestic discipline was the basis of later Roman penal procedure in civil and criminal law, a view that has much to recommend it.
Since Roman law constituted part of the pattern for torture in later European law until the nineteenth century, some consideration of its character and details ought to be given here. There is no better place to start than with Mommson’s argument from domesticity.
The shift of law in any culture from a conflict between individuals and families to a public trial is always a complex matter. Much of the legal procedure of the Roman Republic can only be understood from the point of view of private ‘justice’. From feud, even blood feud, and private revenge the next step led easily to voluntary arbitration by a third party, from voluntary or communal arbitration to arbitration imposed routinely by the state in the legis actiones (forms of legal action), then to a wider formulary procedure and finally to the procedure cognitio extra ordinem, in which the state wholly administered judicial proceedings. As Alan Watson (The Law of the Ancient Romans (Dallas, 1970), p. 10) has argued, some of these developments took place quite early among the Romans. In the cognitio extra ordinem the parties to a suit lose control over its course and the private citizen acting as an arbitrator gives way to a public official delegated by the emperor or by an official high in the imperial administration. In the course of this transition the power of the state increased from its original role in the legis actiones of controlling vengeance and organizing arbitration. In addition, certain actions came to be considered crimina, acts which put the security of society in danger and threatened the loss of the pax deorum, the peaceful benevolence of the gods, and these were distinguished from those purely private conflicts known as iudicia privata.
This brief summary reflects the generally recognized divisions of Roman legal history: the period of ancient law (to the third century BC); the classical period (from the second century BC to the beginning of the third century AD); and the law of the later Empire (from the third century AD to the sixth century AD). Historians of Roman law, unlike those of Greek law, regard even the earliest Roman legal procedure as a collective process rather than exclusively one of self-help; the community voice was heard in any case early and consistently throughout a legal dispute, whether in the person of a voluntary arbitrator or that of a public magistrate.
It has been argued that one of the great forces that transformed Roman law from the primitive and sacral stage to a rationalized and secular stage was the influence of Greek thought from the fifth century BC on. During this long and slow process, the oath and the testimony of witnesses acquired greater recognition, as did the formal character of complaints and the method of arbitrating them. The formulary procedure represented a greater sophistication in categorizing and weighing evidence, particularly that of written evidence. The later development of the early cognitio extra ordinem made it the standard form of the Roman trial, governed totally by a single magistrate who, usually a member of a class below the highest in Roman society, was professionally informed about legal matters.
In the process of ancient classical law, the principle of the inviolability of the freeborn citizen was strictly adhered to. Theodor Mommsen pointed out that never in the history of the Republic was there any indication that that principle had been violated. Even Roman slaves outside of the household appear to have been vulnerable to torture only in criminal proceedings and not, like their counterparts in Greece, in civil cases indiscriminately. In his De partitione oratoria (34.117–18), written around 45 BC, Cicero discussed the advocate’s approach to evidence produced by torture:
If examination of witnesses held under torture or demand to hold such examination is likely to help the case, you must first support that institution, and speak about the efficacy of pain, and about the opinion of our ancestors, who undoubtedly would have repudiated the whole thing if they had not approved of it; and about the institutions of the Athenians and Rhodians, highly cultivated people, with whom even freemen and citizens – most shocking as this is – are put to the torture; and also about the institutions of our fellow-countrymen, persons of supreme wisdom, who although they would not allow slaves to be tortured to give evidence against their masters, nevertheless approved of the use of torture in cases of incest, and in the case of conspiracy that occurred during my consulship. Also the contention usually employed to invalidate evidence under torture must be scouted as ridiculous, and pronounced to be doctrinaire and childish. Then you must produce confidence in the thoroughness and the impartiality of the inquiry, and weigh the statements made under torture by means of arguments and inference. These then more or less are the constituent parts of a case for the prosecution.
Cicero seems to be wrong, at least about traditional Athenian law, and his evidence for the case of the Rhodians is unknown. His reference to torture in the Catiline conspiracy is the only evidence that torture may have been used or contemplated in 64 BC, but his prohibition of the torture of slaves to produce evidence against their own master is generally recognized as a Roman legal principle, although possibly as the result of senatorial decree rather than from immemorial custom. Cicero here, obviously, is defending the prosecutorial use of torture and presents arguments only in its favour – or rather describes the sorts of arguments an advocate would have to use to accredit it if he needed to invoke its use. His arguments are not unlike those Aristotle had given as part of the speechwriter’s stock in trade. Aristotle is specifically echoed in Quintilian’s Institutio oratoria (5.4.1) of the second century AD:
A like situation arises in the case of evidence extracted to torture: one party will style torture an infallible method of discovering the truth, while the other will allege that it also often results in false confessions, since with some their capacity of endurance makes lying an easy thing, while with others weakness makes it a necessity. It is hardly worth my while to say more on the subject, as the speeches both of ancient and modern orators are full of this topic. Individual cases may however involve special considerations in this connection. For if the point at issue is whether torture should be applied, it will make all the difference who it is who demands or offers it, who it is that is to be subjected to torture, against whom evidence thus sought will tell, and what is the motive for the demand. If on the other hand torture has already been applied, it will make all the difference who was in charge of the proceedings, who was the victim and what the nature of the torture, whether the confession was credible or consistent, whether the witness stuck to his first statement or changed it under the influence of pain, and whether he made it at the beginning of the torture or only after it had continued some time. The variety of such questions is as infinite as the variety of actual cases.
The evidence of the Roman orators, like that of the Greek orators, is specialized and illuminates only part of the problem. Legal sources proper offer two more important kinds of information: the transformation of Roman society and the reflection of that transformation in criminal law. The Republican distinction between the free citizen and the slave became less important in two respects after the establishment of the Empire: the emergence of imperial constitutions and practices in the first and second centuries AD and their effect on the law, particularly the law of treason; and the growing social divisions of the Empire that produced the two general classes known as the honestiores and humiliores. The first of these exerted great influence upon the law itself, and the second created new categories of relative liability under the law.
Henry C. Lea, in his essay on torture (Superstition and Force (1866), separately reprinted as Torture, 1973) cites a passage from Suetonius (August. xxii) which suggests the ominousness of imperial privilege. During the second Triumvirate, a praetor named Z. Gallius happened to salute Octavius while he carried a tablet under his toga. Octavius, thinking the tablet might have been a sword and Gallius the agent of conspiracy, had Gallius arrested and tortured before putting him to death. The idea of majesty that had once resided collectively in the Roman people now came to reside in the person of the emperor. The emperor could not only make law, but he could make exceptions to the law which did not necessarily recognize the old Republican privileges of the freeman, particularly when the imperial safety was (or was imagined to be) in danger.
The sources for the legal history of the Republic – the Twelve Tables, the orators, the senatorial decrees, and the occasional comments of jurists, such as are found in the Institutes of Gaius – disappear under the Empire, and they are replaced by the edicts and constitutions of individual emperors, commentaries on these by later jurists like Paulus and Ulpian, and other literary materials. The culmination of this process in the Corpus Iuris Civilis of Justinian, compiled in the sixth century, presents a formidable body of law, rationally laid out and explained, that has influenced jurists ever since. But from the sixteenth century to the present, the problem of the relation between Justinian’s compilation and the legal history of the period between the first and the early sixth centuries AD has occupied the labours of scholars and jurists alike. Justinian’s Corpus cannot simply be unrolled and be expected to reveal the legal development that led up to it. However, so many of the fundamental texts of imperial Roman legal history are contained in the Corpus that reference to it is essential, and convenient.
Since the figure of the emperor – although normally with the advice of jurists – stands at the head of Roman law, we must consider both the growth of imperial policy in crimes of state, and the social changes that created two classes of citizenship in Roman society and two classes of liability in Roman law.
Octavius’ torture of Gallius was the first, but not the worst, example of extra-procedural imperial actions towards suspected traitors. Suetonius (Tib. 61–2) details with great maliciousness the steps by which Tiberius sought out real and imagined conspiracies, so that ‘every crime was treated as capital’, even to the point at which a friend of the emperor’s, invited from Rhodes, was absentmindedly put to the torture because the emperor assumed that he was simply a new informant. ‘While Caligula was lunching or revelling, capital examinations by torture were often made in his presence’ (Cali. 32). Claudius ‘always exacted examination by torture’ (Claud. 34), and Domitian, ‘to discover any conspirators who were in hiding, tortured many of the opposite party by a new form of inquisition, inserting fire into their private parts, and he cut off the hands of some of them’ (Dom. 10).
Thus far, we have concentrated on the activities of the emperors in the area of interrogatory torture alone, but we must note that the pages of Suetonius and Tacitus are filled with extravagances of cruelty, suspicion and murderous, psychotic rage that colour the history of the Julio-Claudian dynasty. It is sometimes difficult to sort out a single thread among the blood that smears early Roman imperial history. At times, imperial anger resulted in a deliberate parody of the judicial procedure: Tacitus describes a scene in which Tiberius investigates the discovery of some mysterious marks beside the names of the imperial family in the papers of one Libo:
As the defendant denied the allegation, it was resolved to question the slaves, who recognized the handwriting, under torture; and, since an old decree prohibited their examination in a charge affecting the life of their master, Tiberius, applying his talents to the discovery of a new jurisprudence, ordered them all to be sold individually to the treasury agent: all to procure servile evidence against Libo, without overriding a senatorial decree! (Ann. 11.30)
Tacitus’ remark about Tiberius’ ‘applying his talents to the discovery of a new jurisprudence’, is more than bitter irony, since the emperors’ position and power permitted them to develop extraordinary procedures regarding the old Roman crime of maiestas, or perduellio, the injury of the Roman people. Tacitus also tells the story of the freed slave Epicharis:
In the meantime, Nero recollected that Epicharis was in custody on the information of Volusius Proculus; and, assuming that female flesh and blood must be unequal to the pain, he ordered her to be racked. But neither the lash nor the fire, nor yet the anger of the torturers, who redoubled their efforts rather than be braved by a woman, broke down her denial of the allegations. Thus the first day of torment had been defied. On the next, as she was being dragged back in a chair to a repetition of the agony – her dislocated limbs were unable to support her – she fastened the breast-band (which she had stripped from her bosom) in a sort of noose to the canopy of the chair, thrust her neck into it, and, throwing the weight of her body into the effort, squeezed out such feeble breath as remained to her. An emancipated slave and a woman, by shielding, under this dire coercion, men unconnected with her and all but unknown, she had set an example which shone the brighter at a time when persons freeborn and male, Roman knights and senators, untouched by the torture, were betraying each his nearest and his dearest. For Lucan himself, and Senecio and Quintianus, did not omit to disclose their confederates wholesale; while Nero’s terror grew from more to more, though he had multiplied the strength of the guards surrounding his person. (Ann. XV.57)
It is in the light of procedures such as these that one should, for example, consider the persecution of the Christians. Originally Christians were protected by their Jewish status, since Judaism was recognized as a legal religion in the Empire, although it did not conform to normal Roman requirements for licit religions. By the last quarter of the first century AD, Roman magistrates were able to distinguish the separate Christian identity from Judaism, and Christians therefore fell into the category of followers of illegal religions and were subjected to the legal liabilities such status entailed. Although there is much scholarly disagreement over the technical reasons for the persecution of Christians, scholars are generally agreed that the torture and aggravated death sentences under Nero, beginning in 64 AD, constituted a precedent for regarding Christians as both impious and subversive and therefore subject to investigation by torture and subsequent shameful and degrading punishments. Lea astutely catches the combination of unique psychological circumstance and the legal power of the emperors in his remark that ‘under the stimulus of such hideous appetites, capricious and irresponsible cruelty was able to give a wide extension to the law of treason’ (Torture, p. 10). For the law of treason, the crimen laesae maiestatis, constituted the rationale for the emperors’ assumption of such extraordinary legal powers. The results of the development of the law of treason later affected criminal procedure in general.
Echoing Mommsen, Floyd Lear (Treason in Roman and Germanic Law, 1965) has suggested that the Roman doctrine of treason, the crimen laesae maiestatis, the injuring or diminishing of majesty, grew out of early Roman religious sanctions against the killer of a father, parricidium, and the actions of a Roman who becomes an enemy of his own community and aids its enemies, perduellio. Included in perduellio are desertion from the army, the delivery to the enemy of any Roman territory, giving aid and comfort to the enemy, the inciting of a war against Rome or a rebellion within, and the breaking of the ban of exile by returning illegally to Italy. Perduellio also included assaults on magistrates and violations of the obligations of client to patron. Again echoing Mommsen, Lear traces the history of the term maiestas so that it becomes associated with the dignity of the representatives, or tribunes, of the plebs, who were not protected by the patrician notion of perduellio. By the end of the Republic, the single term maiestas, majesty, had come to stand for the dignity of the Roman people and state, having absorbed earlier terms and extended itself to insult as well as injury. On occasion a temporary dictator might arrogate such status to himself as to make assaults on him technically a crime against the maiestas of the Roman people, as Octavius had in the case of Q. Gallius before he became emperor. Once the head of the state became the Augustus, he was able to cluster about himself the old sanctions against parricide, violating the duties of a patrician, injuring or insulting the tribune of the people, and violating religious sanctions, so that the crimen laesae maiestatis was a crime of impiety as well as insult and injury, and then not simply against a private individual, but against one who embodied the dignity, sacrality and majesty of the Roman state in his own person.
Such a spectrum of authority explains the freedom of the Julio-Claudian emperors to protect themselves against real or fancied threats that is so grimly calendared in Suetonius and Tacitus. This precocious development of the Roman law of treason survived the Julio-Claudian house and influenced not only the incidence of torture in the Roman Empire, but an extraordinarily heightened idea of the state.
Besides the transformation of the doctrine of maiestas, we must also consider some of the legal consequences of social change in the Empire between the first and the fourth centuries. The old Roman Republican distinctions between freemen and slaves and, among the freemen, between patricians and plebeians, effectively ended with the social wars and the fall of the Republic. The new distinctions, which appear in law by the third century AD, speak of two kinds of citizen: honestiores and humiliores. The former were privileged and served as the effective governing class of the Empire; the latter were the rest of the people, those in minor trades, the poor and the uprooted. The way in which these distinctions were translated into law may be seen in a passage from Justinian’s Digest:
The credibility of witnesses should be carefully weighed. Therefore, in investigating their persons attention should be paid first of all to the rank of each, whether a man is a decurion [an urban official ranking as honestoris] or a plebeian [humilioris] or whether his life is honourable and blameless, or on the contrary he is a man branded by public disgrace [infamia: see below] and is reprehensible … (22.5)
Justinian’s directive was not limited to advising magistrates on how to estimate the character of witnesses. For by the sixth century the legal reflections of honestiores/humiliores and the new ruthlessness of criminal law under the emperors made the humiliores the first Roman free victims of judicial torture, outside of those who had been tortured under the provisions of the crimen laesae maiestatis. Nor was torture the only burden that humilioris status entailed. Certain kinds of punishment, such as corporal punishment by being thrown to the wild beasts or by being crucified, were the lot of the convicted humilioris. The lowest class of free citizens of the Empire, subject to such examination and punishment as had once been applicable only to slaves and to free citizens in cases of treason, had now slipped juridically down to that level itself. Citizenship no longer offered the protection to all citizens it once had done.
By the period of the early Empire several features of Roman legal history helped make the law of treason central to the question of torture. On the one hand, some categories of people were regarded as being so low, and on the other, some kinds of crime so vile, as to break down restraints otherwise present in the system. The establishment of the emperor’s position as personification of the majesty of the Roman people, and the emergence of treason as a particularly vile and personal crime, help to define the context in which torture of freemen developed in Roman criminal law. But a classic case will remind us of the strength of the protection which the law afforded normally to Roman citizens around the middle of the first century AD.
One of the best-known trials in the history of Roman law, although not for legal reasons, is that of St Paul before the Roman courts of Jerusalem and Caesarea, told in Acts 22–26. Paul, charged with various crimes, was brought before a centurion who proposed to examine him by torture in order to get at the truth of the charges against him. When he was tied up in preparation for being whipped, Paul asked the centurion: ‘Can you legally flog a man who is a Roman citizen and moreover has not been found guilty?’ After verifying Paul’s claim with his superior, the centurion not only released him, but worried, ‘because Paul was a Roman citizen and that he had put him in irons’. Although the rest of the trial illustrates other points of Roman procedure, Paul’s claim that citizenship exempted him from the routine criminal investigative procedures is a striking example of the sacrosanctity of Roman citizenship in a highly visible provincial administrative centre.
It should also be noted that Paul merely had to voice the claim to citizenship for the torture to be suspended. The claim had to be investigated meticulously. Nearly two centuries later Ulpian (Digest 48.18.12) cited an imperial rescript stating: ‘When anyone to avoid being tortured alleges that he is free, the Divine Hadrian stated in a rescript that he should not be put to the question before the case brought to decide his freedom has been tried.’ Thus, in cases like that of St Paul, the claim to freedom acted as a kind of interlocutory decree that had to be resolved before the original process could proceed. And from the evidence of Acts, it appears that Hadrian himself was merely restating an older principle of law.
The Romans used a number of terms to describe what we, somewhat indiscriminately, called ‘torture’. The investigative process in Roman criminal procedure was called quaestio, which also referred to the court itself. Tormentum originally referred to a form of punishment, including the aggravated death penalty, to which, under the Republic, only slaves were subjected, although later freemen were also liable to it for certain crimes. When tormentum was applied in an interrogatory way, the technical term was quaestio per tormenta, or quaestio tormentorum, that is an investigation by means that had originally been strictly a form of punishment, and that of slaves only. Ulpian was also specific about the linking of these terms:
By ‘torture’ we should understand, torment and corporeal suffering and pain employed to extract the truth. Therefore, a mere interrogation of a moderate degree of fear does not justify the application of this edict. In the term ‘torment’ are included all those things which relate to the application of torture. Hence, when force and torment are resorted to, this is understood to be torture. (Digest 47.10.15.41)
Ulpian elsewhere could remark (Digest 29.5.1.25): ‘We, however, understand the term torture to mean not merely being put to the question, but every inquiry and defence that may be made in the investigation of the death of the master.’ Evidently, by Ulpian’s day, quaestio and tormentum/tortura had become virtually synonymous. This identification is preserved in French, in which the term la question in the criminal process was long synonymous with la torture. Thus, the terminology of Roman torture explains why it was originally confined to slaves, since it was a development of punishments applicable only to slaves.
Indeed, the vast bulk of the material in the Digest in the title ‘Concerning Torture’ (48.18) refers routinely to the torture of slaves. The single exception consists of a statement by Arcadius Charisius (Digest 48.18.10.1): ‘But when the charge is treason, which concerns the lives of emperors, all without exception are to be tortured, if they are called to give evidence, and when the case requires it.’ Charisius, writing around 300 AD, is a late witness, but he testifies to a practice that was clearly recognized informally in the first century, and officially during the second.
Customarily, as has been pointed out, slaves could be tortured only in criminal cases. The emperor Antoninus Pius, however, extended their liability to pecuniary cases in the second century:
The Divine Pius stated in a rescript that torture could be inflicted upon slaves in cases where money was involved, if the truth could not otherwise be ascertained, which is also provided by other rescripts. This, however, is true to the extent that this expedient should not be resorted to in a pecuniary case, but only where the truth cannot be ascertained, unless by the employment of torture it is lawful to make use of it, as the Divine Severus stated in a rescript. (Digest 48.18.9)
Thus, the area of law in which slaves could legitimately be tortured expanded to certain civil areas by the second century. At the beginning of the Empire, Augustus had cautioned against the use of torture (Digest 48.18.8): ‘I do not think that torture should be inflicted in every instance, and upon every person; but when capital and atrocious crimes [capitalia et atrociora maleficia] cannot be detected and proved except by means of the torture of slaves, I hold that it is most effective for ascertaining the truth and should be employed.’ About jurists’ and emperors’ doubts concerning the efficacy of evidence obtained, by torture, we will speak below. Here it is sufficient to note that the range of torture expanded dramatically between Augustus’ time and that of the Antonine emperors in the second century. The qualification ‘when the truth cannot otherwise be ascertained’, marks both Augustus’ and Antoninus Pius’ observations, but it seems to have come to mean less and less during the second and third centuries.
As the occasions for torturing slaves expanded, they also began to be extended into the lowest class of citizens. Callistratus, around 200 AD, noted a similar development in terms of the death penalty (Digest 48.19.28.11): ‘Slaves who have plotted against the lives of their masters are generally put to death by fire; freemen sometimes also suffer this penalty, if they are plebeians and persons of low rank.’ An early fourth-century rescript of the emperors Diocletian and Maximian (Code 9.41.8) states:
We do not permit soldiers to be subjected to torture, or to the penalties imposed upon plebeians in criminal cases, even when it appears that they have been dismissed from the service without the privileges of veterans, with the exception of those who have been dishonourably discharged. This rule shall also be observed in the cases of sons of soldiers and veterans. In the prosecution of public crimes, judges should not begin the investigation by resorting to torture, but should first avail themselves of all accessible and probably evidence. If, after having obtained information relative to the crime, they think that torture should be applied for the purpose of ascertaining the truth, they only ought to resort to it where the rank of the persons involved justifies such a course; for, by the terms of this law, all the inhabitants of the provinces have the right to the benefit of the natural benevolence which we entertain for them.’
Public dishonour and ‘low condition’ thus became two of the circumstances by which freemen might be subject to torture. Let us consider them in order.
The early distinction between slaves and freemen, and between patricians and plebeians, included, for the Romans, the idea of personal dignity, honour, esteem and reverence. In defining dignitas, Cicero (De inventione 2.166) stated: ‘Dignity is honourable prestige. It is worthy of respect, honour and reverence.’ The Romans, always acutely sensitive to any hint of the diminishing of dignity or reputation, recognized and named the facts of their loss – infamy [infamia] and [ignominy] – long before they made a formal legal doctrine of them. For a Roman, whether in or out of court, by formal or informal means, to lose social respect was a severe psychological and social blow. Romans could, and did, go to great lengths to prevent their honour from being lost or diminished. J. M. Kelly has recently suggested that Roman fear of shame acted as one factor inhibiting litigation, even in cases where one had right and the law on one’s side. Since the Roman trial was one of the few places in which reprehensio vitae, vituperatio – unabashed, highly eloquent artistic insult – was the stock in trade of opposing advocates, and where the usual laws of defamation did not apply, attacks on personal honour and dignity accompanied the trial procedure. Romans also recognized vilitas – the practice of certain dishonourable trades or professions. On occasion, the Edict of the Praetor dictated that certain kinds of individuals could not bring suit before his court. Among those barred from the Praetor’s court were homosexuals, procurers, gladiators, those who fought wild beasts in the arena, comic and satirical actors, those who had suffered dishonourable discharge (missio ignominiosus) from the army, and certain individuals condemned in shaming legal procedures. During the second century AD the condition of infamy was recognized as covering most of these cases. From this time on, the legal sources concentrate much more precisely upon the juridical nature of infamy, on the rules governing magistrates’ application of it, and the juridical consequences it entailed.
During the fifth and sixth centuries a substantial jurisprudence of infamia developed. This development paralleled the extensions of the occasions when slaves could be tortured, when freemen might be interrogated and punished by formerly servile methods, and when ‘low’ condition exposed more and more freemen to torture itself. These changes are not unrelated. Commenting in the second century on the old law of the Twelve Tables, the jurist Gaius had distinguished the plebs as comprising all those below senatorial rank. By the first and second centuries, the upper rank of Roman society had expanded to include more people than senators alone, especially in the equestrian, or ‘knightly’ rank. This upper rank acquired the older privileges of patricians and senators. Those not in the upper rank (that is, those called by the second century the honestiores) became the humiliores, and just as the distinction between honestiores and humiliores grew sharper, particularly in terms of the idea of personal dignity and legal privilege, so the distinction between the humiliores and the slaves grew blurred, and the humilioris, lacking the dignity of the upper rank, acquired some of the indignity of the lowest rank. Arcadius Charisius makes this point (Digest 22.5.21.2): ‘Where the circumstances are such that we are compelled to accept a gladiator, or some person of that kind, as witness, his evidence is not to be believed, unless he is subjected to torture.’ The infamous person, like the slave of old, lacks the dignitas to offer voluntary testimony merely under questioning; torture must validate his testimony.
The developing doctrine of dignitas and infamy constituted one means of imposing upon hitherto free citizens disabilities that once had pertained to slaves alone. That the humilioris class of free citizens (made no less vulnerable by the extension of universal Roman citizenship by Caracalla in 212) was acquiring new and formerly servile liabilities in matters of legal procedure between the first and the fourth centuries is amply illustrated by steps taken in imperial rescripts to protect the honestiores from a similar fate. In a text already cited, Diocletian and Maximian protected the status of soldiers; the same emperors repeated a rescript of Marcus Aurelius from the second century regarding the preservation of the dignity of honestiores:
It was decided by the Divine Marcus that the descendants of men who are designated ‘Most Eminent and Most Perfect’ to the degree of great-grandchildren, shall not be subject either to the penalties or the tortures inflicted upon plebeians, if no stigma of violated honour attached to those of a nearer degree, through whom this privilege was transmitted to their descendants. (Code 9.41.11)
Other instances of such efforts at protection of the honestiores are many. Ulpian claimed the same privileges for decurions, local town councillors, and their children (Code 9.41.11), a right that had to be renewed by the fourth-century emperor Valentinian (Code 9.41.16), who excluded only the case of treason from its defensive scope. Theodosius the Great, in 385, insisted upon the exemption of Christian priests from torture (Code 1.3.8), thus indicating the alignment of the Christian clergy with the honestioris class. That these protections were needed is indicated by a rescript of the Emperor Valentinian in 369, which indicated (Code 9.8.4) that although torture could be routinely applied in the case of treason, and exceptionally by personal command by the emperor, it was, nevertheless, widely and indiscriminately applied to freemen for far lesser offences.
Clearly, between the second and the fourth centuries, the privilege of not being subject to torture was being eroded, not only from the bottom of society upward but, beginning with treason and slowly enlarging to include other offences including those determined by the pleasure of the emperor, it was also being eroded from the top down. The occasional and irregular torture of freemen by the Julio-Claudians created a practical precedent that later emperors and jurists may have attempted to regulate in theory, but expanded in practice. And magistrates below the level of emperor were quick, or indifferent, to follow suit.
Nor was treason, even a vastly expanded definition of treason, the only reason that emperors legitimated the use of torture against freemen. Caracalla in 217 (Code 9.41.3) authorized it in cases when a woman was accused of administering poison. In the fourth century Constantius (Code 9.41.7) made soothsayers, sorcerers, magicians, diviners and augurs liable to both interrogatory torture and the aggravated forms of capital punishment. Constantine and Justinian (Code 9.9.31; Novel 117.15.1) authorized its use in cases of unnatural lusts and adultery respectively. Diocletian issued an edict stating that all Christians should be deprived of the privileges of status and be subject to the application of torture, an edict naturally not preserved in the Corpus of the Christian emperor Justinian.
By the fourth century, the old sharp line between privileges of freemen and slaves had long since disappeared, and a variety of offences brought freemen under the threat of torture. At the top of Roman society, first treason, then the expanded definitions of treason and the addition of other offences, also exposed honestiores to torture. The appearance of a class of bureaucratic magistrates, no longer the learned jurists of the second and third centuries, probably made the application of torture more routine and less considered. The series of imperial edicts cited above which tried to remind officials about the restrictions on torture probably reflected a real problem and real imperial and honestioris concerns.
The character of Roman torture
The chief legal sources for the Roman law of torture are found in the Code of Justinian (9.41) and in the Digest (48.18). The former consists of imperial constitutions, the latter of the opinions of jurists. Together, the sources discussed so far offer a comprehensive account of the occasions of torture, but they say little of methods of torture. They also contain a jurisprudence of torture and a survey of opinion on the reliability of evidence gained by torture. The remarks of Cicero and Quintilian cited above suggest that the orators were perfectly aware that the occasions of torture and the results of testimony elicited by torture had to be manipulated during the trial depending upon whether the speaker defended or opposed the evidence in question. Such purely practical viewpoints as they advocate does not suggest a particular oratorical approval or disapproval of torture, but they do suggest no absolute conviction of the reliability of evidence elicited in this manner. The Digest, while presenting the point of view of the jurists, is at once less ambivalent and more cautious. One of the most important texts in the Digest (48.18) consists of twenty-seven extracts from the lost Treatise on the Duties of a Proconsul by Ulpian. Ulpian’s very first observation notes that Augustus had stated that ‘confidence should not unreservedly be placed in torture’, and that torture should not begin in inquiry. In fact, the opening of Ulpian’s whole discussion deals with cautionary warnings about the place of torture in the judicial process, the requirement of other evidence, the presence of strong suspicion, the prohibitions on torturing slaves for evidence against their own masters, and the kinds of questions that should be put during torture. The Digest (48.18.1.23) contains a remarkable reservation concerning the whole question:
It was declared by the Imperial Constitutions that while confidence should not always be reposed in torture, it ought not to be rejected as absolutely unworthy of it, as the evidence obtained is weak and dangerous, and inimical to the truth; for most persons, either through their power of endurance, or through the severity of the torment, so despise suffering that the truth can in no way be extorted from them. Others are so little able to suffer that they prefer to lie rather than to endure the question, and hence it happens that they make confessions of different kinds, and they not only implicate themselves, but others as well.
Thus, emperors, orators and jurists all recognized the problem of evidence extracted by torture, although such concerns seem to have been the limit of their concern for the practice. Like the Greeks, the Romans recognized in treason, and in servile or low social status, adequate causes for the continuation of practices that they themselves knew were highly unreliable. The jurisprudential safeguards the Romans devised were based not upon an anachronistic humanitarianism, but upon their conviction that the evidence produced by it was a res fragilis et periculosa, a ‘difficult and dangerous business’, and could easily be misleading or false. Valerius Maximus cited a number of cases in which torture produced evidence that proved unreliable. Quintus Curtius Rufus (Historia, VI.xi) tells the story of the torture of Philotas for evidence in a conspiracy against Alexander the Great. After extensive torture, Philotas promised to confess if it were stopped. When the torture ceased, Philotas turned to the investigator and asked ‘What do you wish me to say?’ Curtius Rufus observes that no one knew whether to believe Philotas, ‘for pain elicits both true confessions and false statements’. Although they had some misgivings about the legitimacy of torture, the Romans also had few misgivings about its effect upon human beings. Between the second and the fifth centuries, they expanded and developed a method of investigation about whose reliability they had few illusions. Instead of questioning the method, they surrounded it with a jurisprudence that was designed to give greater assurance to its reliability, a jurisprudence that is admirable in its scepticism and unsettling in its logic.
To appreciate both scepticism and logic it is necessary to look at Roman methods of torture, about which both the Code and the Digest are conspicuously silent. These methods remind us of the multiple meanings of such terms as tormentum, since the means of interrogatory torture sometimes derived from aggravated physical punishments and sometimes offered new models for such punishments, including means of capital punishment.
The standard means of torture (later, apparently, adopted as a means of aggravated capital punishment) was the rack, a wooden frame set on trestles in which the victim was placed with hands and feet fastened in such a way that the joints could be distended by the operation of a complex system of weights and ropes. Such distension of the joints and muscles was the aim of related tortures such as the lignum, two pieces of wood that pulled the legs apart. A torture that seems to have been derived from capital punishment was that of the ungulae, hooks that lacerated the flesh. Torture with red-hot metal, flogging, close constriction of the body in confinement (the mala mansio, or ‘evil house’) – some of these techniques borrowed from the Greeks – constituted additional forms of torture. One juridicial source for other forms may be found in the Digest (48.19), ‘On Punishments’, for various forms of corporal punishment were also adapted for use in interrogatory torture. The jurist Callistratus (Digest 48.19.7) lists ‘castigation with rods, scourging, and blows with chains’ among these. Greek methods of capital punishment had included beheading, poison, crucifixion, beating to death with clubs, strangling, stoning, hurling from a precipice and burial alive. The Romans prohibited posioning and strangling, and they reserved crucifixion for slaves and particularly despicable criminals. Ulpian points out another Roman prohibition (Digest 48.19.8.3): ‘No one can be condemned to the penalty of being beaten to death or to die under [beatings with] rods or during torture, although most persons, when they are tortured, lose their lives.’ That is, although torture by rods often ends in death, the death of the person under examination cannot be the purpose of such torture. The Romans also seem not to have used the torture on the wheel, which the Greeks had used.
Aside from the titles in the Digest, the historians and the Christian apologists offer the most detailed accounts of Roman penal practices, including torture. Lactantius’ On the Deaths of the Persecutors and Eusebius’ History of the Church offer amazing detail of both formal and informal torments inflicted upon Christians, including all of those mentioned above, whether as interrogatory tortures or aggravated sentences of death. In the light of the survival of aggravated death sentences and the extent of popular resentment against Christians and other especially despised enemies, scepticism about the reliability of evidence gained from torture pales as a moderating element in a society which knew of no way procedurally to avoid torture and therefore was inevitably committed to its excesses.
Roman law and Germanic societies
In the history of the legal institutions and mentality of the Germanic invaders and settlers of the Roman Empire after the fourth century, we can see yet again the transformation of archaic legal practices into more complex ones, partly as a result of internal changes within Germanic societies and partly as a result of the availability of a developed, learned law, in this case that of Rome. As in archaic Greek and perhaps early Roman law, the concept of personal injury and self-help precedes that of crime, the concept of the feud precedes that of trial, and freeman status not only distinguishes the Germanic warrior from the slave and the stranger, but attributes to him many qualities similar to those that had once protected Athenian citizens and Roman citizens of the honestioris class. But the Germanic societies of early medieval Europe did not, for the most part, swiftly develop and adapt their practices and values to those of Roman law. In most cases Roman law did not become widely known and studied in northern Europe until the end of the eleventh century. Not until the twelfth did much of it influence the legal institutions of Europe.
But for those who were not freemen, or those who were disgraced freemen, Germanic law did permit torture and punishments of a kind that diminished personal honour. Slaves accused of crimes, the wives of a murdered man of rank, and the freeman publicly pronounced a traitor, deserter or coward might all be treated in this way. Tacitus’ Germania, written at the end of the first century, clearly recognizes these characteristics of Germanic legal culture.
In many cases among the Germanic legal codes (which certainly do not comprise the sum total of actual Germanic legal practice), there is an echo of the earlier custom of the Roman torture of slaves. But even in this case, as Lea observed (Torture, p.26), ‘the legal regulations for the torture of slaves are intended to protect the interests of the owner alone.’ Even slaves accused of crimes (here, as in early Roman law, only the accused slave could be tortured) remained valuable property, and the inveterate Germanic respect for the property of a freeman tempered even its adaptation of those parts of Roman legal practice that did not violate its fundamental premise of freeman-capacity among litigants.
Tacitus’ observations on the virtual untouchability of free Germanic warriors, however, can best be understood in terms of our own recently-acquired sense of the difference between shame-cultures and guilt-cultures. One did not live long or well without honour in the world described by Tacitus. But the Germanic world described by Tacitus did not live long itself. From the fourth to the sixth centuries, it broke through the Roman frontier, established peoples and kingdoms within the old provinces of the Empire, and finally supplanted the Empire itself in the West. The rapid social changes that followed from these adventures drastically reoriented Germanic society, a process that can be traced from the transformation of kingship to the appearance of written legal codes. At first the principle of the personality of the laws separated German from Roman; one went to law according to the laws of the people among whom one was born. Germanic legal practices and Roman legal practices existed side by side in many places, and perhaps it was in this way that the Roman torture of slaves was adopted by the Germans, although by the fifth and sixth centuries torture in Roman law had long since been extended to all but the honestiores. The Germans seem to have regarded themselves as the equivalents of honestiores, and, aside from occasional unsanctioned actions by their kings, seem to have preserved the freeman from torture consistently throughout most of their early legal history.
Besides the divisions of Germanic society into the ranks of slaves and free warriors, however, other social distinctions appeared after the fourth century. Gradually, the independent status of Romans and their advantage in clinging to their own law by right of the personality of law slowly faded as Roman legal institutions disappeared and the Roman subject-population merged with the Germanic population of the two kingdoms. By the seventh century, for example, the code of the Visigoths no longer recognized Gothic and Roman legal procedures; Visigothic law, at least, was on its way to becoming territorial rather than personal. Further, the differentiation among free Germanic warriors proceeded apace, and in the same Visigothic code we find references to the torture of ‘freemen of the lower class’, possibly an echo of late Roman legislation, but surely a sociological phenomenon that bore some meaning within Visigothic society itself. In several countries, ‘freemen of the lower class’ merged with upwardly mobile slaves to constitute a new half-free class of serfs, but by then these and their legal personality had virtually dropped out of Germanic legal practice altogether.
In the case of the Visigothic law alone do we see a substantial body of doctrine concerning the torture of both slaves and freemen. Although the propietary character of slaves, as noted above, is recognized, and slave testimony was considerably restricted, it seems to have been practised routinely among the Visigoths. Book VI, Title 1 of the Visigothic Code describes the circumstances in which torture is permitted and mandated. Torture even of freemen of the lowest class can only take place either in the case of a capital crime or in one involving a sum of money greater than 50 (later, 250) solidi. Only freemen can accuse freemen, and no freeman can accuse someone of a higher rank than himself. Torture must take place in the presence of the judge or his appointed representatives, and neither death nor the loss of use of a limb is permitted. Homicide, adultery, offences against the king, the people as a whole, counterfeiting and sorcery are the crimes for which, assuming the qualifications of the accuser’s and the accused’s rank are met, torture can be used, even upon a noble. But even when the peculiarly Visigothic characteristics are noted, it is clear that the law of the Visigothic Code is modelled upon late Roman imperial law, even as it mitigates its severer sanctions.
The Visigoths alone wrote this much torture into their laws, and it remained in those laws through the early medieval history of the Iberian peninsula and was revived in the period of the reconquista after the eleventh century. Although a few other Germanic codes preserve echoes of the Roman law of torture, the fact of the accusatory process and the undeveloped rules of evidence worked against the practical survival of torture until the process of working Roman law into the legal culture of northern Europe began in earnest during the twelfth century.
