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The Queen of Proofs and the Queen of Torments

The legal revolution of the twelfth century

A revolution in law and legal culture took place in the twelfth century and shaped the criminal – and much other – jurisprudence in Europe until the end of the eighteenth century. It derived both from a transformation of the law as it had existed between the sixth and twelfth centuries and from an increasing awareness of the need to create universally binding and applicable laws for all of Christian Europe, and the possibility of doing so. Thus both the ‘revival’ of learned Roman law and the immediately subsequent formation of a universal canon law opposed themselves to what rulers and earlier scholars perceived as the provincial, ‘irrational’, unprofessional and archaic nature of law before the twelfth century. Generally, legal historians have agreed with twelfth-century jurists’ view of the legal culture that preceded them. That culture has been termed irrational, ritualistic and primitive – and, in less charitable and understanding circles, superstitious and savage. Current research is in the process of revising such opinion. Early European law, however, operated according to certain cultural premises, and it could hardly be reformed until those premises no longer compelled assent. In the legal universe of early Europe, law was not a separately reformable part of a segmented culture; ideas of nature, reason, God and society had to change as well – indeed, before the law itself could change.

The reasons for that legal and intellectual revolution are many. They touch upon both fundamental cultural assumptions and the most important of social bonds; of, in the words of Julius Goebel, ‘the deadly pressure of social change upon the outmoded structure of rights and remedies’. In spite of the intensity of that pressure, the archaic European structure of rights and remedies first had to be perceived to be outmoded before substantial change could be initiated.

Among the consequences of the legal revolution was the recovery and adaptation of the body of learned, written Roman law, the creation of specifically legal education, the emergence of a legal profession, and new bodies of applied law through western Europe. These changes were adaptations to the changed social conditions of twelfth-century Europe. They were preserved until the late eighteenth century, not only by the continued study and practice of Roman or Roman-influenced law, but by the printing process, law schools, courts and philosophical jurisprudence; and they circulated throughout Europe until the end of the ancien régime. The tradition that they created has survived until the present. In one of the most important consequences of the revolution, the inquisitorial procedure displaced the older accusatorial procedure. Instead of the confirmed and verified freeman’s oath, confession was elevated to the top of the hierarchy of proofs, so elevated, in fact, that jurists called confession ‘the queen of proofs’. Differently from Greek and Roman law, the place of confession in legal procedure, rather than the status of the accused or the nature of the crime, explains the reappearance of torture in medieval and early modern law.

The ‘criminal law’ of Europe before the twelfth century was predominantly private. Public officers did not search out and investigate crimes. Injuries were brought to the attention of the officials of justice by those who had suffered them, and it was the accuser’s responsibility to see that legal officers acted. The accusation of one private party by another was, as the jurists said, the ‘ordinary remedy’ for what, since the twelfth century, we have called a ‘crime’. Since both parties possessed freeman-capacity, litigation between them was strictly limited according to the inviolability of the person of a freeman. The accuser found the proper court (one that professed jurisdiction over both parties), made his accusation, swore an oath to its truth, and called the other party into court to answer. The accused, faced with the charge, needed in general only to take an oath that the charge was false. It might be that the court then decided that the accused’s oath by itself was not sufficient for a decision and required oath-helpers, compurgators, in addition to the oath of the accused. These compurgators were not witnesses to fact, but only of their willingness to support the accused by testifying to their consent to his oath. If the number of compurgators was sufficient, the case stopped there with a dismissal of the charge. The oath was the strongest ‘evidence’ an accused party could wield, and for most charges it was more than adequate grounds for ceasing litigation.

In some cases, notably those against men whose reputation was bad, some charges, chiefly those of capital crimes, might entail the subjection of the accused to the ordeal, a process in which the judgement of God was invoked to determine an issue rendered insolvable by the limitations of human juridical procedure. Finally, in some cases, the two parties or parties designated by them might engage in judicial combat, which was also considered a form of ordeal, on the grounds that God would permit the victory only of the party in the right. Oath, ordeal and judicial combat constituted the ‘irrational, primitive, barbarian’ modes of proof before the mid-twelfth century. Archaic and unsatisfactory as they later appeared to be, they responded adequately to the fundamental premises of freeman-capacity and the procedural limitations it imposed upon courts. They also reflected the sense of what some historians have called ‘immanent justice’ during the period: the assumption that divine intervention in the material world was continuous in such a way as to refuse to permit wrongs to go unpunished, even to the extent of being invocable automatically against presumed wrongdoers. People accepted the judgements of ordeal, oath and judicial combat because they believed that they were judgements of God as well as ancient and accepted practices.

From the ninth century on, these procedures became part of the liturgical life of European society as well. Ecclesiastical rituals for the administering of the oath and the ordeal appeared regularly, and clergy participated in them – more, probably, because they could not deny the idea of immanent justice than because of the practices’ antiquity and widespread use. Even in those areas in which some traces of Roman procedure survived, notably in Lombardy, little headway was made against them before the twelfth century, although the responsibility of the accused to furnish proof was sometimes modified to permit the plaintiff to do so as well, and ordeals seem to have been used less frequently; nevertheless, the system of the judgements of God remained in universal use throughout Europe.

In some courts, chiefly ecclesiastical, other traces of older Roman procedure were still prominent. The form of procedure known as inquisitio – the initiating of an action by an official, the collection of evidence of fact, the taking of testimony from witnesses, and the judgement issued by the investigating judge – was used in a limited number of kinds of cases. Charlemagne used this procedure, but not widely, and the tide of procedure and jurisdiction flowed away from inquisitio between the ninth and the twelfth centuries.

In order for the older system to be replaced, a number of distinct changes had to happen: an entire system of ancient and respected methods of procedure and the cultural assumptions they reflected had to be eliminated and replaced; the idea of immanent justice, or judgement of God, had to give way to a notion of effective human juridical competence and authority; and both clergy and laity had to concur in these changes. During the course of the twelfth century, except in a very small and specialized category of cases, these three changes did in fact occur. The older system of proofs gave way before two distinct but equally revolutionary procedures, those of the inquisitorial process and the jury; the ideal of a justice within reach of human determination came to be widely accepted, particularly with the creation of a legal profession and the spread of the new uniform procedures; churchmen and learned lay people both professed to find the idea of immanent justice repellent, stripped the earlier procedures of their liturgical dimension, and then built up a formidable theological denial of their efficacy.

The revolution did not take place simply in one area of social life or for one motive. It was not the revived study and application of Roman law in the twelfth century, nor a leaving off of earlier barbarian practices alone that caused these changes, but a complex combination of changes in society and political authority that influenced the new legal procedure in several different ways. The circles in which homogeneous legal practices were applied widened, as popes, kings and territorial princes centralized much of their authority; during this centralizing process, the administration of law fell more and more into the hands of specialists and, from the early twelfth century on, educated specialists who hunted out inconsistency and conflicting principles, and imposed a particular kind of rationality upon legal procedure. Specialists also wrote. The influence of literacy, from written instruments to specialized treatises on procedure, was enormous after the mid-twelfth century and seems to have played a key role in changing the nature and shape of social thought as well as specific details of procedure. Writing draws with it rationality. The schools and courts of the twelfth century were peopled by those who had studied formal logic and applied it to practical problems of conflicting sources and perceived paradox, and insisted that it guide legislation and the operation of the law.

The story of these changes has been told often and well; as they took place, a new system of Romano-Canonical legal procedure was erected in place of the older judgements of God. The inquisitorial procedure supplanted the accusatorial procedure. Whether the entire procedure was in the hands of a single judge, as in the inquisitorial system, or divided between a jury finding a verdict and a judge issuing a penalty, as in the jury system, the world of human experience required that proofs be sought, produced and examined, that witnesses be classified and interrogated under oath, and that the accused have some rational means of defence against the charges.

As each of the older procedures was abandoned, of course, a great deal of uncertainty remained about the new. As new procedures displaced older ones, themselves now under suspicion, the one kind of certainty that remained untouched was the value of confession. Indeed, and briefly, it may be said that the value accorded to confession offered a kind of protection to the new procedures that evolved. Confession ascended to the top of the hierarchy of proofs and remained there long after the Romano-Canonical inquisitorial procedure and the procedure of trial by jury had come to be firmly in place themselves. For jurists and lay people alike, confession was regina probationum: the queen of proofs. For all the uncertainties that attended the gathering and weighing of evidence, the testimony of witnesses, and the unpredictability of judges and juries, confession provided a remedy, and in some cases, chiefly capital ones, it came to be required. It is the importance of confession upon which hinges, if not the revival, then surely the spread and integration of torture into the legal systems of the thirteenth century.

The return of torture

From extremely slender roots in the ninth century, the procedure of quaestio (inquest) remained infrequently used until the twelfth century in lay courts, although it seems to have become generally used in ecclesiastical courts during the same period. One reason for this was the greater ability of church courts to accept the doctrine of mala fama, or ‘bad reputation’, which allowed an ecclesiastical judge to hale a suspect before him without the presence or fact of an accuser. Church courts also developed the doctrine of the notoriety of crimes, which also permitted the ecclesiastical judge to begin proceedings without an accuser. Such notions as these began to establish juridical distinctions among freemen, and the ecclesiastical alignment of Frankish and later ideas of mala fama with the older Roman legal doctrine of infamia created substantial inroads into the idea of the inviolability of the defendant. They were preserved in the influential canonical collection of Pseudo-Isidore from the mid-ninth century on. In church courts, at least, the man of ill fame, the Anglo-Saxon tihtbysig or ungetreowe, the Scandinavian nithing, would have a hard time making a case or testifying in one, particularly in church courts. He could not be ordained, and he found that ecclesiastical courts could diminish or consume his good reputation with greater effect than lay courts could. Precociously developed between the ninth and twelfth centuries in ecclesiastical usage, the notion of infamy was also enhanced by the renewed study of Roman law after the eleventh century. Roman infamia had entailed severe social disabilities; so too did the later medieval doctrine, including opening up a kind of hierarchy of defendants in place of the homogeneous assumption of freeman-capacity.

Among legal changes between the ninth and the thirteenth centuries, the development of a doctrine of infamy, more elaborate than that of the Romans, was particularly useful and versatile. Against it a defendant was less protected than before by conventional assumptions and even by the judgement of God. In 1166 in the Assize of Clarendon, the English king Henry II observed that even if those of bad reputation, evilly defamed by the testimony of many legal men, survived the favourable outcome of the ordeal, they were nevertheless to flee the kingdom and not return. With the inquisitorial process, the doctrine of infamy contributed to the overturning of one legal universe by another.

The legal revolution took more than a century to be accomplished. It appears that its new procedure was generally in place before torture became a part of it. Two other aspects need to be considered first: the role of confession and the problem of proof.

For all their shortcomings, more clearly denounced throughout the twelfth century, the archaic procedures – oaths, ordeals and judicial combats – produced definitive decisions. To secure equally definitive decisions from testimony, inquest, witnesses, juries and magistrates seemed, at least until the mid-thirteenth century, far less certain and far more risky for the defendant. Thus in some cases inquest could be used as a procedure only when the defendant agreed to it, as, at first, could the petty (or trial) jury in England. In capital cases, moreover, these were new standards by which to apportion life and death, and a convincing system of proofs took a long time to develop. Some jurists argued that decisions based upon inquest should only lead to lesser punishments. For a long time, the technical skills needed to pursue an inquest were hard to acquire and apply. Just as infamous or notorious defendants appeared, so too did reliable and unreliable witnesses, and judges, prosecutors and juries knew it.

Paradoxically, even though the various forms of the inquest produced entirely new pictures of defendants, cases and witnesses, vastly more information than had ever surfaced in a routine trial, they also increased the fear of error. Confession, once only one of several means of corroborating an accusation under older procedures, now loomed larger than ever as a means of overcoming that uncertainty. One could be caught red-handed, by the right officials and witnesses, only at the moment of the crime. But one could confess at any time. And in the course of the twelfth century, sacramental confession and doctrines of voluntary penance developed rapidly and elaborately. With sacramental confession (made an annual obligation on all Christians at the Fourth Lateran Council of 1215) already developed as one of the two principal arenas of canon law (the other being the canon law trial itself), the role of confession became central to many areas of twelfth-century life. It was not long before it became central in serious criminal cases as well.

Faced with the prospect of open testimony challenged by the defendant, or with secret testimony doubted by the judge, and by a series of proofs that had yet to be graded in terms of reliability and trustworthiness, late twelfth- and thirteenth-century jurists and teachers of law raised the confession of the accused to the highest level of value. Beneath it ranged, between 1150 and 1250, a hierarchy of proofs. Particularly for capital crimes, this hierarchy of proofs was to provide the essential background to the use of torture.

In the developed thirteenth century doctrine of proofs, only two stood alone. One could condemn the accused on the testimony of two eyewitnesses or upon confession. If confession was not forthcoming, and if there was only one or no eyewitness, a series of indicia, circumstantial evidences, might be invoked to constitute a partial proof. But without full proof, no condemnation could be made, and no combination of partial proofs could constitute a full proof. Without a confession and without two eyewitnesses, then, there was only a graded combination of partial proofs available to the judge and hence no chance of conviction. To overcome the lack of a second eyewitness and the presence of many but never sufficient indicia, the courts had to return to the one element that made full conviction and punishment possible: confession. And to obtain confession, torture was once again invoked, but on very different grounds from those of ancient Roman law.

But this has been to get ahead of the story a little. These events covered more than a century, and that century saw other concerns emerge that also touched questions of legal procedure. First came the renewed study of Roman law, dating from the work of Irnerius at Bologna around 1100. At first, indeed for half a century, scholars worked simply at reconstructing and explaining the Corpus Iuris Civilis. Roman law was held to be still binding in parts of Italy and southern France, although most of its provisions had long since fallen into disuse. And learned jurists still considered it an expression of supreme legal reasoning, whether it was specifically binding in a particular locale or not. Indeed, in many early commentaries from the twelfth century, the relevant sections of the Digest and Code that dealt with torture were simply not commented upon and probably not taught. But as the twelfth century went on and the changes described just above took place, Roman law began to influence all the laws of Europe, not merely those in France and Italy. First, it influenced the law of the Church, as Roman law came to be an introduction to canon law; second, it influenced all centralizing legal authorities, whether they adopted it entirely or not, even in those lands in which, as in England, another general system of law would eventually prevail. The doctrines regarding torture in Roman law were there when Europeans needed them, but they did not force themselves upon legal reformers, nor was anyone obliged to begin torturing defendants simply because Roman law contained a number of provisions for doing so.

The earliest mentions of torture in late eleventh- and early twelfth-century sources are explicit: it is reserved for known criminals and the ‘lowest of men’, vilissimi homines: ‘Men living honestly who cannot be corrupted by grace, favour, or money, may be received as witnesses on the strength of their sworn oath alone. The lowest of men, however, those easily corrupted, may not be received [as witnesses] on their oath alone, but are to be subjected to tortures, that is, to the judgement of fire or of boiling water.’ In this passage from the Book of Tübingen, around 1100, the familiar ordeals are referred to as ‘torture’ and reserved for a specific class of witnesses. The same text states elsewhere: ‘A slave is not to be received as a witness, but is to be subjected to imprisonment or to torments, so that the truth may be made plain, just like thieves and robbers and others of the worst kind of malefactors.’ Other instances of this ordeal-torture are to be found in the laws of the Latin Kingdom of Jerusalem. As Fiorelli and others have pointed out, the conceptualization of the judicial ordeal seems to have been changing from the late eleventh century on. But this was not without precedent. An addition to the law of the Visigoths states that a freeman accused of a crime had to undergo the ordeal of boiling water in order to see whether his interrogators ought to proceed to the torture. But the stream of legal literature that began to flow from the schools and teachers of Bologna early in the twelfth century began to distinguish among these confused aspects of criminal procedure and separated the legal definition of torture from the earlier ordeals, using the newly-read texts of the Code and the Digest for their definitions. Although not all commentators dealt with the sections De quaestionibus, and although it is sometimes difficult to tell the difference between teaching material and actual descriptions or prescriptions of judicial practice, by the early thirteenth century teaching and practice appear to have drawn very close together.

The most important text in this respect is the Summa of the great Roman lawyer Azo, written around 1210. The text is important, as Fiorelli points out (La tortura, I, 123–4), ‘not only for its great quantity of data and citations, nor for the immense influence that the pages of this work exerted on the later doctrine, since it was reprinted and meditated upon and cited as if its author were still alive for four hundred years after his death, but because it is the unique surviving work from the period before the closing of the glosses.’ Azo’s mastery of his materials, his presentation, and his awareness of judicial practice of his own age mark his Summa as virtually the earliest surviving treatise to contain a discussion of torture as a legal incident in European history. Other Roman lawyers, from Roffredo of Benevento and Accursius to Thomas of Piperata and Albertus Gardinus later in the century, filled out and extensively developed the work of Azo.

In this respecct, the Roman lawyers went far beyond the scholars of ecclesiastical law in the twelfth century. The greatest of these, Gratian, whose Concordia discordantium canonum, or Decretum, written around 1140, became the basic textbook of canon law for nearly eight centuries, clearly stated that ‘confession is not to be extorted by the instrumentality of torture’, echoing centuries of ecclesiastical prohibition of torture. From the mid-twelfth century, however, canon lawyers considered the Roman law doctrines of torture and by the first half of the thirteenth century had approved its use in civil law procedure.

The first references to the practice of torture, however, occur entirely outside both the ecclesiastical and the academic legal frameworks. The Liber iuris civilis of the comune of Verona in 1228 empowered the ruler of the city to seek evidence in doubtful cases by the duel, any other judgement of God, or by torture. In some cases in the early thirteenth century, of course, torture must have seemed very like the ordeal: God would strengthen those who were just in order that they could resist it. It seems clear that those who are recorded as first using torture are local magistrates, like the podesta of Verona in 1228, or the officers of the Count of Flanders around 1260. Some of the earliest indications of the use of torture, then, indicate that it was introduced as a police procedure, perhaps even before any trial had taken place, and by lay officers. Some qualifications of the laws of Verona and other Italian city-republics and in Flanders itself in the course of the thirteenth century suggest further attitudes toward it. In Ghent in 1297, the count and his officers were forbidden to torture a citizen of the town without the approval of the town council. In Vercelli in 1241 no one was to be tortured ‘unless he is a known criminal, a thief, or a man of ill fame’. As police powers broadened, informal torture was used from the early thirteenth century on, but originally as a méthode policière, and only much later assimilated into legal procedure. Citizens protested its use, at least against fellow citizens of good repute, but they approved it in the case of those generally of ill fame. Magistrates needed confessions and, as they found in the course of the thirteenth century, torture was often able to extract them. In the growing and crowded cities of thirteenth-century Flanders and Italy, the enforcement of a centralized criminal law often fell to the lot of legal officers who had much to do before a case came to trial.

In these early cases in lay courts, torture was probably used as a police method so that in the event of too few eyewitnesses, or insufficient other indicia, the case might begin with a confession. Once the confession became essential to the trial proper, however, methods used to achieve it had to be considered as part of legal procedure and therefore out of the hands of the count’s or podesta’s officers. In such cases, in the course of the thirteenth century, the kinds of privileges claimed for themselves by the citizens of Ghent and other towns disappeared. Once torture became part of legal procedure, fewer exemptions because of rank or status could be allowed. A man might be exempt at first because of his reputation as an upright citizen and a trustworthy person, but even this status did not long survive the routinizing of torture in court procedures. During that process there were indeed restrictions on torture, but they were not these restrictions.

As torture was introduced into legal procedure proper, it had to take its place within the framework of confession and the law of evidence. Both ecclesiastical and lay law asserted, for example, that no confession could be extorted. Hence, torture was not a means of proof, but a means of obtaining a confession. It did not intend to force a guilty plea, but a specific statement that contained details that ‘none but the criminal could possibly know’. It could be expected to achieve these goals because of those events that triggered its use in the first place. First, there had to be at least one eyewitness or sufficient probable cause that the accused had committed the crime; the probable cause was measured by the number of specific indicia ranked and weighted according to accepted procedure. Second, when it was decided to apply torture, the court had to be reasonably convinced that a confession would be obtained. Third, the accused would be preached to and implored to make a confession, and to this end he was often shown the instruments of torture before the application itself.

R. C. van Caenegem (‘La preuve’, p.740) has summarized the procedure we have been describing:

In the last analysis it was the needs of criminal practice and new principles for the pursuit of criminals that were responsible for the reappearance of torture in Europe, and not the revival of Roman legal studies. It seems that the renewal of Roman law and the reception of torture in ecclesiastical practice were the result of the diffusion of the inquisitorial procedure in Europe.

Compared to the older forms of procedure, the new inquisitorial process appeared far less repugnant to contemporaries than it may at first seem to us. It was certainly more professional. The inquisitorial procedure offered much that would seem familiar and acceptable to a modern litigant: the avoidance of rigid, excessively formalized, and ritually announced and answered charges; the open airing of testimony and the weighing of evidence from both parties; the presence of a trained judge who might also act equitably in weighing intangibles. At its outset in the twelfth century at least, inquisitorial procedure seemed to reflect precisely that reliance upon reason, conscience, and a broadened concept of the social order that historians have praised in other aspects of life in this period.

In addition to the new criminal, the new magistrate, and the new procedure, the twelfth century also witnessed new (or apparently new) forms of religious dissent. In some specific areas, notably the schools and universities, an enormous leeway in discussion and disputation was entirely permissable, but among those who were thought to have no professional qualifications for dispute, and indeed those who opposed the universally understood teaching magisterium of the bishops and pastors, the appearance of religious dissent, whether aimed at the structure and powers of the Church or at actual dogma, was perceived by orthodox laity and clergy alike as far more dangerous than any ordinary crime, no matter how despicable. The apparent magnitude of dissent in society, the newly articulated authority of the Church and clergy, and the unique problems involved with the discovery of intellectual crime generated considerable ecclesiastical and lay concern, and for several reasons the new inquisitorial procedure (particularly in cases where accusers were hard to find, or unwilling to testify) offered an appealing approach to the problem.

The process itself, or rather an earlier form of it, had, of course existed as a routine procedure in ecclesiastical courts for centuries. In many cases there was hardly the need for a process at all, since a number of dissidents were willing to announce their beliefs freely. In the early eleventh and twelfth centuries, aside from sporadic acts of mob violence, bishops generally used expulsion from the diocese or excommunication as the treatment of self-pronounced or otherwise discovered heretics. Twelfth-century papal and conciliar legislation urged various other forms of ecclesiastical discipline, but none stronger than excommunication. Even the first papal decree against heretics everywhere in Europe, Lucius III’s Ad abolendam of 1184, went no further than establishing the category of contumacy for practising heretics. Ecclesiastical discipline, in short, varied from time to time, from place to place, and from bishop to bishop. Preaching and conversion missions, episcopal visitations, the creation of the Mendicant Orders, all represent a generally neglected and probably effective response through the twelfth century. They represent the way of – persuasio ‘persuasion’.

The steps taken against heretics by central ecclesiastical authorities after the middle of the twelfth century were based largely upon the increasingly sophisticated scholarship dealing with universal canon law. Canon law, generally diffused and regionally applied throughout most of western Europe between the sixth and the twelfth centuries, began to be considered as a single universally applicable law during the conflicts between popes and emperors at the end of the eleventh and the beginning of the twelfth centuries. Around 1140 a Bolognese scholar, Gratian, assembled a vast number of texts from earlier sources, arranged them analytically, and commented upon them as a body of law. Gratian’s Decretum, as his collection came to be called, showed up the shortcomings of traditional law as well as its strengths, and his successors, including papal legislators and church councils, filled out the law and developed an ecclesiastical jurisprudence comparable – and in some cases superior – to that of twelfth-century Roman law.

Gratian and his successors naturally recognized Roman law, particularly since large parts of it dealt with ecclesiastical affairs, including imperial legislation against heresy and definitions of clerical status. In some respects, Gratian’s remarks and texts concerning torture continued a long tradition of ecclesiastical rejection of the practice in church affairs. Gratian insisted that clerics could not apply torture (Decretum D.86 c.25), and he echoed the older papal prescription that such confessions were not to be extorted, but spontaneous (C.15 p.6 d.1). But Gratian recognized some exceptions to this rule, also traditional. He acknowledged that accusers of a bishop might be tortured (C.5 q.5 c.4), that in some cases people in the lowest ranks of society might also be tortured (C.4 qq. 2–3), and that slaves might also be tortured (C.12 q.2 c.59). Gratian also noted the practice in Roman law; his successors, both scholars and prelates, similarly reconciled ecclesiastical law with contemporary Roman law practices. The next great collection of law, Gregory IX’s Liber Extra of 1234, contained several papal letters from the twelfth century that recognize this (X.3.16.1; X.5.41.6). By the mid-thirteenth century, then, canon law became more universally known, studied and applied, and it drew closer to the precepts of Roman law, especially in areas of mixed interest like criminal sanctions and legal procedure.

It is in this context that the history of ecclesiastical legislation and procedure against heretics has to be considered. Lucius III’s decretal Ad abolendam of 1184 has already been mentioned, and it should now be noted that the papal letter not only established the category of contumacy for heretics, but it also insisted that episcopal inquisitorial tribunals be established throughout Christendom. In the legislation of the Fourth Lateran Council in 1215 early condemnations of heresy were reiterated, and by the time of the council the legal doctrine of infamia, infamy, was inflicted upon heretics in both canon and secular law. In 1199 Pope Innocent III, building upon the relatively new laws of treason of the twelfth century, announced in his decretal Vergentis in senium that heretics were traitors to God, exactly comparable to traitors to Caesar in Roman law, thus opening up yet another broad avenue for new legal sanctions. During the early decades of the thirteenth century, the Albigensian Crusade against heretics in Languedoc and the constitutions of the Emperor Frederick II continued this emphasis. The decretal Ille humani generis of Pope Gregory IX in 1231, which for the first time charged a convent of the Dominican Order with the power to erect an inquisitorial tribunal with its authority derived directly from the pope, pursued the struggle with dissent and developed new procedures for dealing with it.

In some respects, it was the failure of the ordinary episcopal tribunals that intensified legislation after 1184 and led to the creation of the professional inquisitor. By the second quarter of the thirteenth century the crime of heresy had been aligned with the crimes of treason and contumacy in secular society, the heretic had been declared ‘infamous’, and therefore the category of heresy had come to be considered identical to those crimes which in secular law led to serious criminal penalties, required the application of the full hierarchy of proofs, and demanded confession for full conviction. The ecclesiastical inquisition did not create the inquisitorial process, with torture to secure confession, but adapted it well on in the process of discovering heresy and developing a number of different means to combat it. From the 1230s on, the Romano-Canonical procedure worked equally in ecclesiastical and lay criminal courts.

The jurisprudence of torture

From the second half of the thirteenth century to the end of the eighteenth, torture was part of the ordinary criminal procedure of the Latin Church and of most of the states of Europe. From its irregular appearances in the twelfth century and its apparent initial role as a police procedure, it entered the regular legal procedures of continental law, acquired its own jurisprudence and, indeed, became a learned specialty among jurists. One of the most striking features of torture, aside from its appearance and use in the first place, is its fascination as an object of study and academic exposition to generations of lawyers and jurists, from Azo and the anonymous author of the Tractatus de tormentis around 1263–86 to the French conservative jurist Pierre François Muyart de Vouglans on the eve of the French Revolution. The archives of European states record the first, and a voluminous and highly detailed literature records the second. Let us consider the nature and laws of torture first, and then the jurisprudence of torture.

In all legal systems there is always a greater or lesser degree of divergence between these two areas; in the case of the practice and theory of torture the divergence is more than a little perplexing. On the one hand, some scholars who study chiefly the theory see it as so dissimilar from the recorded practice that they regard it as little better than judicial hypocrisy; others regard the theory as a high standard never met by the actual courts. In the case of practice, social historians see little but unchecked brutality and sadism, while legal historians use a standard of measurement and judgement that often has little or no regard for the larger social questions involved.

In the Latin and vernacular sources the terms used are tortura, quaestio, tormentum, and occasionally martyrium, cuestion, questione, question. In German the latin form Tortur was used less frequently than the indigenous German word Folter, and other terms designated Marter and peinliche Frage (from quaestio); in French, besides la question, the terms gehine, or gene (from Gehenna) were used. In addition, most European vernaculars developed specialized idioms to describe particular kinds of torture, many of them euphemisms. By the thirteenth century, when a specific juridical doctrine of torture had taken shape, specialists could address Ulpian’s famous definition of quaestio as scholarly equals:

By quaestio is to be understood the torment and suffering of [inflicted on] the body in order to elicit the truth. Therefore, simple interrogation or incidental threats do not pertain to this edict … Since, therefore, force and torment are the features of quaestio, the quaestio is to be understood in this way.

The ensuing sections of the Code and the Digest were then interpreted in this light, and subsequent definitions of torture echoed that of Ulpian. Azo called it ‘the inquisition of truth by torment’; and the late thirteenth-century Tractatus de tormentis only slightly altered Ulpian’s statement: ‘an inquisition which is made to elicit the truth by torment and suffering of the body’. Some jurists, following the peculiar etymology of the seventh-century encyclopaedist Isidore of Seville, also spoke of the mental effects of torture, based upon the supposed derivation of tormentum from torquens mentem, ‘the twisting of the mind: since, by the suffering of the body, the mind is therefore turned’.

Thirteenth-century jurists, once they had defined quaestio, turned to its legal nature, and some called it a method of proof. But the imprecision of this term, since torture was in fact a means, or an incident, of obtaining a confession, which was a method of proof, should not be overestimated. The literature on torture indicates that now magistrates knew exactly what torture was and why it was used.

In spite of the early confusion between torture, ordeals and punishments that prevailed in the twelfth century, the influence of such jurists as Azo, Tancred, Innocent IV and Hostiensis in the early and mid-thirteenth century erected a doctrine of Romano-Canonical procedure in criminal cases that endured until the end of the eighteenth century. The increasing professionalism of lawyers and judges, the role of the schools, and the proliferation of professional opportunities in cities empowered to appoint their own judges and establish their own municipal laws, all contributed to the clarity, common character, and definitiveness of the procedure.

Since later developments often obscure the early shape of the procedure, from the modifications of the Inquisition to the routinized practices of the period after 1450, it may be well to lay out first the doctrines that informed the judge of a crime and led through a complex process to a final declaration of innocence or guilt, and in the latter case to the infliction of the prescribed punishment. Given the great variety of particular applications of the law across Mediterranean and transalpine Europe and the different times at which different regions (including those areas like England that rejected large parts of it) adopted the procedure in its full form, the following description must be general, drawn from different legislations and different academic opinions alike. It constitutes merely a control for the consideration of torture in specific places and times.

A judge could discover the perpetration of a crime only in one of three ways: it might be reported to him by his own officials, who had sworn to seek out crimes and were protected by their oath of office from later accusations of calumny; he might hear of it through fama, notoriety, the oaths of respectable citizens who saw or heard of it; or he might know of it privately as an individual. In the last case, although there was some dispute on this point, the judge was generally considered to be one citizen aware of fama, and therefore absorbed into the second category.

Having been informed that an offence had taken place, the judge had to ascertain that in fact it had. His justification in doing this was the report of officials or common fama. ‘It must first be proved’, said the jurist Bartolus, ‘that a crime has in fact been committed.’ The crime had to be punishable. The judge might then call witnesses, hear testimony, and see if a prima facie case for anyone’s likely guilt had emerged. This part was often called the inquisitio generalis or ‘general inquiry’, it followed the initial denunciations and might be compared to a modern inquest.

Once the accused was identified, the inquisitio specialis began: the ‘special, or particular, inquiry’ which would determine the accused’s guilt or innocence – the trial proper. The accused had to be served a writ upon which were inscribed the substantial points of the accusation. The writ brought him to court and, in a residual resemblance to the old accusatorial procedure, either fama or the judge himself were said to stand in the place of the accuser. By the fourteenth century, however, the public prosecutor had emerged to take over this role and the management of the case against the accused as well. (Since torture could only be invoked in cases whose punishment entailed death or mutilation, we shall assume that the punishable crime was of sufficient seriousness.)

Once the inquisitio specialis had begun, the judge was required to use every means possible to discover the truth before the application of torture. This doctrine, that torture could only be used ‘when the truth could not be illuminated by all other proofs’, and the doctrine of the hierarchy of statutory proofs, from two eyewitnesses and confession down through the ‘half-proofs’ and the indicia, framed any decision to apply torture and, from the fourteenth century on, literally took the decision out of the judge’s hands. Once torture was raised as a possible course of action, there had to be a great, although incomplete, body of evidence against the defendant, some of it circumstantial perhaps, but all of it presumptive. This evidence had to be tested itself: fama had to come from reputable people; eyewitnesses had to agree on every particular of their testimony; evidence had to be weighed according to a well-known set of criteria.

In addition, the defendant had to be given a written list of the indicia against him; he could cross-examine the witnesses against him; if the judge decreed torture, the defendant could appeal on the grounds that the indicia were insufficient or that he was an exempted person. Exempted people, a category drawn from Roman law but greatly modified in the Middle Ages, included children under a certain age, pregnant women, people over a certain age, knights, barons, aristocrats, kings, professors and, according to some, but not all, views, clergy. The appeal constituted an interlocutory decree and had to be answered before torture could proceed.

The torture itself was surrounded by protocols: it could not be savage or cause death or permanent injury; it should be of the ordinary kind, with new tortures frowned upon; a medical expert had to be present, and a notary had to make an official record of the procedure.

Even under such terms, the confession made under torture was not itself valid. It had to be repeated away from the place of torture. If the defendant recanted, torture might be repeated, because the original confession constituted another indicium against him. The combination of the presumptive evidence and the confirmed confession permitted the judge to announce the verdict and punishment to be carried out. If the judge had violated the guidelines for torture, he might later be sued under the sindicatus process (a formal review of a judge’s actions) when his judicial term had ended.

This brief account of the European criminal procedure as it existed in most places between 1250 and 1750 derives from legislation and the opinions of the most influential legal scholars and constitutes a model against which actual practices and differences may be measured. As critics have long pointed out, the inquisitorial procedure has a built-in prosecutorial bias. No matter how restricted the judge is procedurally, such problems as his weighing the indicia, the suggestiveness of the interrogation under torture, the quick willingness to accept a confession without then checking its details, and the tendency to torture severely, to elicit a guilty plea instead of a confession, all stack the system against the defendant. The very caution expressed in the thousands of pages of discourse on the jurisprudence of torture between the thirteenth and the eighteenth centuries indicate that medieval and early modern jurists were very well aware of the dangers of the system. They too, spoke of Ulpian’s res fragilis et periculosa, and they knew what they spoke of; but they worked in a system in which confession was the queen of proofs, and between the two, confession and its key role in the Romano-Canonical process seems to have carried much the heavier weight.

It is interesting to contrast the procedure of the Continental courts with that of other European regions that went through the same legal revolution but emerged without Romano-Canonical procedure and without torture. In twelfth-century England, the Assize of Clarendon stated that the king and his officials would put down certain categories of serious crime throughout the kingdom. England had emerged from more than a decade of civil war, and the subjects of Henry II, great and small, appear to have been more than willing to see the criminal consequences of the Anarchy repressed. The king’s judgement and punishment were to fall on all those who were indicted by a local jury of respectable citizens. This, the origin of the grand jury, indicted defendants, who were then held over for trial by a travelling royal justice. The ordeal of water was used in the trial itself, until its abolition in 1215. At that time, after much uncertainty and speculation, King Henry III offered the petty jury, the actual trial jury, as a voluntary means of determining guilt or innocence.

Behind these developments there lay more than a century of particular English history: under Henry I (1100–1135), powerful royal officials had undertaken prosecutions on their own. Between 1135 and 1166 great distaste was shown in England for the independent exercise of prosecutory powers by royal officials. In Church courts, in which historically a group of legitimate clergy, the testes synodales, or synodal witnesses, might accuse someone in a manner prescribed by certain scriptural texts, a similar growth of prosecution by officials had developed. When Henry II produced the Assize of Clarendon in 1166, he did not restore independent prosecution and accusation by royal officials, but created a kind of lay version of synodal witness in the jury of presentment, or the grand jury. The grand jury presented its accusations, not to a powerful local official, but to travelling royal justices, who could then go to trial by means of a petty jury. The kind of evidence that was acceptable in these circumstances was much broader than that acceptable in Romano-Canonical procedure. Circumstantial evidence could accumulate until a jury found it adequately convincing for conviction – as a Romano-Canonical judge could not. There was no state prosecutor who had to be controlled by a rigid system of limitations that demanded torture if played out to its formal conclusion. The English judge did not find guilt or innocence – the trial jury did. With the breadth of English rules of evidence, the absence of a state prosecutor, the different role of the judge, and the responsibility of the grand and trial juries, the place of confession in English law loomed far smaller than in continental law, and the problem of torture became generally irrelevant. Torture did not have a place in the law of England after 1166. Thus in spite of the growing accommodation with torture on the part of canon lawyers in the thirteenth century (and canon law ran in England as surely as it ran elsewhere), and in spite of the discussion of torture in the Liber Pauperum of Vacarius, a scholar of Roman law at Oxford in the 1140s, the reforms of Henry II gave a procedure to the law of England that eliminated the use of torture in the very centuries in which continental legal reforms were drawing closer and closer to it.

In a number of jurisdictions, of course, the accusatory process survived, even without the ordeals, and it did so too in the matter of lesser offences in areas where the Romano-Canonical process also existed for higher crime. The so-called ‘feudal’ courts proved to be reluctant to give up their traditional jurisdiction and their traditional forms of procedure, and they survived in many parts of Europe down to the end of the eighteenth century. Elsewhere, as in the Slavic lands and Russia, rational means of proof arrived late, sometimes under Italian influence, and they often co-existed with irrational means of proof in ways distinct from the rest of Europe. For example, in sixteenth-century Lithuanian law torture could be used only in the accusation of theft, and only at the insistence of an injured private party. It could be used only once, and then only within a year of the actual theft and in such a way as not to mutilate the body of the accused. If the torture failed to elicit a confession, the plaintiff had to compensate the tortured victim with a money payment.

In other parts of Europe the revival of torture took place during a period when, technically, torture had never ceased to be used in the laws of parts of Spain, notably Castile. Although the Corpus Iuris Civilis seems not to have influenced Visigothic Spain, the earlier Codex Theodosianus did, and its provisions for torture were extensive. Torture survived in Castilian law, figured prominently in the Fuero Juzgo of 1241, and occupied a prominent place in the seventh partida of Las Siete Partidas of Alfonso X in 1265. In Aragon, on the contrary, it was abolished in 1325.

In France, an ordonnance of Louis IX in 1254 permitted torture, but it forbade the torture of ‘honest people of good reputations, even if they are poor’ on the basis of the testimony of a single witness, the formal ‘half-proof’ of general Romano-Canonical procedure.

In Germany, torture is mentioned in the statutes of Vienna, around the middle of the thirteenth century, but in the form of a prohibition: it is forbidden to torture the accused by hunger, thirst, chains, heat or cold, or to force a confession to specific charges by blows. Any confession must be made freely, in full possession of mental faculties, before a judge. By the fourteenth century local regional legal codes had developed a fuller jurisprudence of torture, as did the regional laws of central and eastern Europe, generally under the influence of the revived Roman law. Torture appears not to have been part of any Scandinavian laws until the sixteenth century, when it was introduced under the influence of new and more ambitious and influential criminal legal codes from Germany.

The system described so far, whether in the realm of irrational or rational proofs, also possesses a social dimension. In the world of irrational proofs, those of the judicial combat and the compurgatorial oath seem particularly to have pertained to freemen, since only freemen could bear arms and only a freeman’s word was considered worthy of belief. Fighting men tended to see in the judicial combat an appropriate form for their social status, and many courts recognized this throughout the Middle Ages. Indeed, the judicial combat, in the form of the duel, became one of the enduring signs of nobility long after the passing of the age of irrational proofs, and many courts prohibited serfs and very poor freemen this method of acquittal. For them was reserved the unilateral ordeal. This social apportionment of the means of irrational proof, as we have seen, was continued into the system of rational proofs. People who were considered ‘honest’, of good reputation, and perhaps important enough to merit it, were the ideal witnesses and, to a certain extent, privileged defendants. In many jurisdictions it took much more evidence to put a solid citizen to the torture than it took to put a known, or suspected, rogue in the same place.

But such divisions themselves were often unable to withstand the levelling effects of the professionalization of the Romano-Canonical procedure. Once torture had been admitted as a routine part of procedure, privilege tended to become weaker. This probably first occurred in the case of particularly heinous crimes, or crimes considered crimina excepta – those crimes whose importance was so great that they permitted the waiving of normal legal procedure in order to obtain a conviction. The history of the crimen exceptum has not yet been written, but it is arguable that it too is a development of thirteenth-century legal procedure, and that it was built around such offences as heresy, magical practices, counterfeiting, and certain kinds of homicide and treason. Those brought up on charges could count on much less protection from their social status. In the case of exempted persons, for example, later legislation concerning witchcraft and magic sustained most of the excepted categories of persons not subject to torture, but they specifically excluded old age as an exempting principle.

In short, the Romano-Canonical procedure itself contained levelling tendencies that the older system of irrational proofs did not; in addition, the development of a concept of infamy, or that of ‘excepted crimes’, tended to hasten that levelling process. This is a pronounced feature of the legal history of the fifteenth and sixteenth centuries. It is one of the paradoxes of the social history of early modern criminal law that, although some earlier social distinctions and privileges were lost, this levelling process also subjected larger numbers of people to procedures that originally were intended only for the lowest and most disreputable classes of society. By the fifteenth century every man might be tortured, as the groundwork of early modern criminal law was firmly and professionally laid out.

The inquisition

The treatment of torture in the preceding section of this chapter dealt with its description in the laws and in the jurisprudence of the period from the thirteenth century on. Such a focus has led some legal historians to praise the reason and restraint of the thirteenth and fourteenth centuries and to condemn later periods for the perversion of what had been a rational and protective legal system. Thus Walter Ullmann:

This humanization of torture lasted as long as legal scholarship was destined to play a decisive role in the actual application of the law. The progressive decline of legal studies at the universities in later centuries brought forth a lower standard of the lawyers who were called upon to serve the cause of law. The authority of scholars diminished likewise, and their influence upon the practical administration of the law gradually faded away. The law itself was no longer regarded with the respect which was characteristic of previous centuries: lawlessness in social life and laxity in the application of the law went hand in hand.

Such a view seems to neglect unduly some conditions of actual practice in the thirteenth and fourteenth centuries and to attribute perhaps too great a practical role to the high standards of thirteenth-and fourteenth-century academic theory as well as too little a role to the academies of the fifteenth and sixteenth.

From its origins as a practical police tactic to its position as a recognized part of the Romano-Canonical legal procedure, torture was consistently employed in courts whose personnel were not always academically trained experts, and it is doubtful that the carefully guarded consilia and academic treatises ever had much of an influence except in offering a juridical ideal for actual magistrates and torturers.

The key element in the Romano-Canonical system was its rigid hierarchy of proofs, the place of confession in that hierarchy, and the frequent difficulty courts encountered either in finding the two required eyewitnesses or in obtaining a spontaneous confession from the accused. Two other elements appeared in the fourteenth century: the state prosecutor and the practice of concealing from the accused both the names and the testimony of witnesses against him. The appointment of a state prosecutor came about as a residuum of the old notion of the accusatorial process that there had to be an interested accuser if someone were to be haled before the court. In the twelfth and thirteenth centuries, as we have seen, some jurists said that fama took the place of an accuser, or that the judge himself did. In the latter case, however, there arose the objection that the judge could not be both prosecutor and judge, but this was circumvented by the role of the court officials or by the practice of anonymous denunciation, borrowed from ecclesiastical law. By the fourteenth century in France, we find the king’s procurator stepping into the place of the old accuser, or the more recent fama, judge, or denunciatio. From the fourteenth century on, except in England, the state prosecutor plays a more and more prominent role in criminal jurisdiction and procedure. It is the result, not of a corruption of judges or law schools, but of the emergence historically of an official with a particular interest in the procedure, not only of accusation, but of active prosecution of the accused. The inherent prosecutorial bias of the Romano-Canonical sytem had been measurably strengthened.

At the same time, the old right of the accused to know the names of witnesses against him and to examine their testimony was no longer recognized. The roots of this denial of what had been a traditional right of the accused are obscure. As we will see below, they may lie in part with the practices of the ecclesiastical inquisitors, but there may be other reasons as well. First, French criminal justice, to take one example, distinguished between ordinary and extraordinary procedures in criminal jurisprudence. The ordinary procedure resembled the old accusatory process and included a kind of inquest, although one which did not permit the torture of the accused. The extraordinary procedure was inquisitorial and permitted torture. It could be invoked originally only for extraordinarily grave crimes, but it was tempting to use it also in cases where clear decisions could not be reached, and it appears to have been extended slowly to cover more and more categories of crime. The learned category of hierarchies of proof was especially felt in the extraordinary procedure, and its appeal to judges and prosecutors grew stronger. By the end of the fourteenth century in France it was the routine procedure for serious crimes. Because of the nature of the crime and the fear of danger to the witnesses or the flight of the accused upon learning the extent of the evidence against him, the concealing of witnesses’ names and the substance of their testimony became the next step in the development of criminal procedure.

Another aspect of the increasing harshness of criminal procedure was the reciprocal influence of the ecclesiastical inquisition and the secular criminal courts. Since the Christianization of the Roman Empire in the fourth century, a number of crimes later considered purely ecclesiastical were made public offences. Among these were certain acts committed against churches and the clergy, most forms of religious backsliding and, most important, heresy. Thus, heresy was a crime ‘on the books’ of Roman law, and the emperor and his judges were obliged to act against it. Since secular courts had one power which church courts were for a long time denied, the power to shed blood, the Church consistently turned to lay defenders and rulers and courts in cases where clerical personnel were canonically prohibited from acting. When the crisis of religious dissent in the twelfth century became acute, many popes insisted that lay courts undertake the investigation of heresy. The most ambitious cooperation they received was that of Frederick II of Sicily, whose constitutions of 1231 against heretics constituted a landmark of secular statutory law. They were echoed in the laws of England, France, and Germany, and they enhanced the existing Roman law on the subject.

Yet, by the beginning of the thirteenth century, it seemed to popes and other churchmen that both routine episcopal courts and lay courts were failing in their duty. With the charge to the Dominican convent at Regensburg by Gregory IX in 1231, the popes created a new kind of official, an investigator deriving his authority directly from the pope alone, from whose decision no appeal lay, and who operated according to the traditional ecclesiastical mode of inquisitorial procedure. In addition, as we have seen, popes from Lucius III to Innocent III aligned heresy with other kinds of crime: contumacy, treason, and even theft, and they declared heretics infamous and prescribed other punishments common to the secular sphere, such as confiscation of goods and property, penitential exile and fines.

In addition, the most spectacular kinds of heresy, Waldensianism and Catharism, were discovered in those lands in which the influence of Roman law was particularly strong and in which magistrates had already spread widely the use of the inquisitorial process – in the cities of northern and central Italy and in the centre and south of France. The analogies between heretics and other types of criminals were pursued by a series of legally trained popes until the pontificate of the most able of the lawyer-popes, Innocent IV, drew the two even closer together. In his famous decretal Ad extirpanda of 1252, Innocent stated that heretics were thieves and murderers of souls, and that they ought to be treated no better than were literal thieves and murderers. A sixteenth-century commentator, Francisco Peña, introduces Innocent’s text accurately:

Originally, when the Inquisition was first constituted, it seems that it was not permitted to the Inquisitors to torture offenders under the danger (as I believe) of incurring irregularity, and so torture was used against heretics or those suspected of heresy by lay judges; however, in the constitution of Innocent IV, beginning Ad extirpanda, it is written: ‘In addition, the official or Rector should obtain from all heretics he has captured a confession by torture without injuring the body or causing the danger of death, for they are indeed thieves and murderers of souls and apostates from the sacraments of God and of the Christian faith. They should confess to their own errors and accuse other heretics whom they know, as well as their accomplices, fellow-believers, receivers, and defenders, just as rogues and thieves of worldly goods are made to accuse their accomplices and confess the evils which they have committed.’ (Lea, Torture, p. 188)

Although Innocent’s decretal permitted the introduction of torture into the process of investigating heretics, it still did not permit clerics themselves to inflict torture. But during the next pontificate, that of Alexander IV, the decretal Ut negotium in 1256 permitted inquisitors to absolve each other if they had incurred any canonical irregularities in their important work. After the mid-thirteenth century, torture had a secure place in ecclesiastical inquisitorial procedure.

Yet the crime of heresy, in spite of papal analogies, did not resemble ordinary grave crimes in ways that permitted the routine application even of extraordinary procedure. It was a difficult crime to prove; although heretics were said to behave in certain ways, it was essentially an intellectual and voluntary crime; it was rooted in places in which neighbours and families knew each other and people might be reluctant to testify, or might testify for other reasons than the disinterested respect for truth; witnesses to heresy might come from social ranks or have reputations which could have excluded their testimony in an ordinary criminal case; finally, heresy was a shared offence: heretics did not exist individually, and besides the salvation of the heretic’s soul, inquisitors needed the names of fellow heretics. The end of the extract from Innocent IV’s decretal Ad extirpanda cited above implies that torture to elicit the names of accomplices was a common practice in secular courts. In the fourteenth century, French jurisprudence distinguished between the question préparatoire, torture applied to obtain a confession, and the question préalable, torture applied after conviction to obtain the names of accomplices. Innocent may, then, have been referring to an early stage of this process, once again adapting an element of the procedure of secular courts in the hunt for heretics.

These circumstances, added to the fact that the early inquisitors seem not to have been particularly expert in legal procedure (the ‘professional’ inquisitor, with some training at least in the legal procedures of the inquisitions themselves and perhaps some formal legal training in canon law, appears only toward the end of the thirteenth century and the beginning of the fourteenth), appears to have led the new judges of heresy to employ the most drastic aspects of the inquisitorial procedure, often without understanding or appreciating its conventional safeguards for the defendant – indeed, perhaps, out of fear that those accused of heresy were far more dangerous to Christian society than ordinary thieves, murderers or traitors.

The early personnel of the inquisitions, then, mark one difference in ecclesiastical inquisitorial procedure. A second is their readiness to withhold the names and the substantial testimony of witnesses. A third is their customary restriction of the aid of counsel for the defendant. Fourth was the admission of the testimony of otherwise incompetent witnesses: interested parties, those declared infamous, those already convicted of perjury and so forth. A fifth was the relaxation of the rules of evidence and the greater weight given to some indicia, particularly in the area of facial expressions, behaviour, apparent nervousness, and so on. A sixth consisted of the policy of deceiving the accused by introducing spies into their cells, making promises of leniency, and developing a system of carefully designed forms of interrogation that were much broader than those prescribed in the ordinary inquisitorial procedure. A seventh was the category of degrees of suspicion in which accused heretics were held; these determined the intensity of the procedure used against them. In short, the ecclesiastical inquisitors had greatly altered the character of the inquisitorial process as they had found it in the mid-thirteenth century in use in Italy and France. In turn, the secular courts found themselves influenced by the ecclesiastical procedure in the fourteenth and fifteenth centuries. It is in these reciprocal relationships between ecclesiastical and lay inquisitorial procedures, the historical development of forms of criminal procedure, and the changing social and political status of subject and citizen in the fifteenth and sixteenth centuries that the place of torture in European law of the ancien régime must be located.

Torture in the ancien régime

Ulpian’s response to the question ‘What is quaestio?’ and its variations among thirteenth- and fourteenth-century jurists shows the development of a jurisprudence of torture. Of what did torture consist? And how did it survive in the criminal procedure of the ancien régime? These questions must conclude our discussion of medieval and early torture.

Consider a case in progress, in which half-proof, such as one eyewitness, and several indicia have emerged in the testimony. The accused has been interrogated and has not confessed. The judge then orders torture. The accused appeals against the order, and the appeal is heard and denied.

The judge then must accompany the accused to the place of torture and will interrogate him under torture. A notary will be present, and a physician, in cases especially of severe torture. The torturer and his assistants are present, but no advocate for the accused. Generally, the accused might be shown the instruments of torture in order to obtain a confession quickly, particularly from the apprehensive or faint-hearted. The purpose of the torture is the confession of the accused, and the line of interrogation must be developed in such a way that at no time is the accused led on by suggestive questions.