Ever Inward

Ideological systems, whether religious or political, punished thought, not just deed. Why? So long as subjects acted lawfully, did it mat­ter what went on in their minds? Did orthodox behavior require orthodox belief? Were not laws enforcing church attendance or party membership enough? And why were the authorities so curious about their subjects' thoughts? To ensure that everyone was truly virtuous, both thinking and acting correctly? Or were the authorities utilitar­ians, worried that wrong thoughts undermined society's cohesion? Knowing what was in people's heads, let alone changing it, was an intractable problem.

Acting lawfully merely means obeying rules. Being good, however— whether in a religious or a secular moral sense—requires a correspon­dence between interior and exterior states. Sin and morality look to the motivations behind the act, the law to the act itself and to the attitudes impelling it only if they indicate its character.⁶⁸ To avoid sin, according to Locke, inner conviction must correspond to outer behavior; lawfulness only means acting correctly.⁶⁹ In Kant's dis­tinction, morality rests on human autonomy, the law on external compulsion. The law can make people behave correctly, but only morality or belief can make them good.⁷⁰ States reached the outer limits of their powers at this distinction. Perhaps they could compel subjects to act lawfully, but making them good was doable, if at all, mainly through institutions that were only partly under the states' sway: churches, families, schools.

Authorities have always been keen to know the inside of their subjects' heads. In a fragment of an ancient Greek play, possibly by Critias, King Sisyphus speculated that divine omniscience had been hatched as a concept because mortals could not know each other's minds.

But even confession, especially if produced by torture, could mis­lead. The Greeks allowed evidence from slaves only if extracted by torture—even preferring this testimony to the uncompelled offer­ings of freemen.⁷⁶ But was confession under duress authentic? Or a desperate ploy to end the agony? The tortured body was not a reli­able conduit to the soul. Medieval torturers solved the problem as best they could by requiring that a forced confession be repeated in the courtroom. Those who recanted off the rack started over again— though, for what it was worth, no more than thrice.⁷⁷ In sixteenth­century Seville, one observer thought that women who still did not confess after being stripped naked were probably innocent since why else would they accept such humiliation? But this was a logic that could be applied at any stage.

The most fervent heretics, convinced of their own righteous­ness, were especially willing to play fast and loose with the observ­able truth. Protestants in sixteenth-century England, for example, perjured themselves. Ninety-eight percent of Lollards, an early

Protestant sect, who were tried as heretics abjured. Many of them then relapsed, so their initial recantations were likely insincere. Even Joan of Arc recanted at first. Hearing saints' voices rebuking her, she rescinded her recantation and was burned alive.⁷⁹ Giovanni Valentio Gentile, an Italian Protestant in Calvin's Geneva, was arrested for heresy in 1558. Concluding that he had recanted out of fear rather than conviction, the judges voted for his execution.⁸⁰ The sentence was commuted, but the point remained. Ultimately no one could know the authenticity of a forced confession, and those doing the confessing or recanting might well still retain their heretical core beyond reach of their suffering.

Torture was of course often used as punishment in its own right. Ancient Persians tortured not to extract confession but to intensify suffering.⁸¹ But its main role in Western law was evidentiary, to reveal truth in the absence of better sources. Greek and Roman authori­ties tortured only outsiders, including slaves, but not citizens, over whom they had other leverage. Slaves, beholden to their masters, would tell the truth to others only under duress.⁸² Citizens, however, were valid witnesses in court. If they lied on the stand, they risked being charged with perjury, pronounced legally infamous (atimos), and fined.⁸³ That perjury eventually became a serious crime is the price we have paid for avoiding torture.

Medieval courts tortured to unveil innermost thoughts but also to solve crimes without witnesses. In Europe's inquisitional systems, confession became the queen of proofs. Not only did the defendant's admission seal the case, but for crimes that were unknowable in any other way confession was the only access to them. With offenses such as simony and concubinage, the only witnesses were themselves implicated and unlikely to sing.⁸⁶ Other offenses, such as heresy, might be unknown to anyone other than the offender, though blasphemy, like slander, required an audience of at least one. How then to make suspects confess? Torture was required because the inquisitional system demanded firm proof. Abolishing ordeals had moved God out of the judicial process. Tor­ture was meant to reassure that the standard of proof remained exacting. With mere mortals now sitting in judgment, confession— even if elicited by torture—became the capstone of evidence.⁸⁷ Where judicial torture remained uncommon, as in England, it was largely because the standard of proof was lower. English authori­ties tortured, too, but unenthusiastically. Persecuting the Templars in 1310 and unable to find competent Englishmen for the task, Edward II imported continental torturers.⁸⁸ Not English humanity but the legal system explains the difference. By Roman law stan­dards, the jury system applied lax standards of evidence—whatever would convince a dozen compatriots.

New crimes were formulated that were not capital and there­fore required less-definite proof for conviction. When seventeenth­century Germany began to punish those who were merely suspected of offending (Verdachtsstrafe), the standard of proof was adjusted accordingly, and torture to confession (inherently unlikely with a crime of suspicion) was no longer required.⁸⁹ Circumstantial evidence was taken evermore seriously, displacing confession. As the quality of the evidence required to convict was lowered and the range of both offenses and sanctions expanded, torture was less fit for purpose. An increasingly powerful state, punishing subjects for more acts in more ways, could afford to abandon such blunt instruments. Fundamental to torture's eventual demise was also that certain interior crimes— religious and many political heresies—fell out of the state's remit.

The authorities no longer had to plumb souls, though that still left broad scope, as we will see, for other occult crimes.

Torture in the West today is used largely on outsiders but now mainly in a forward-looking interrogational mode, aiming to extract information about anticipated events rather than confessions about past transgressions.⁹⁰ Having supposedly banned torture, our own era (ignoring totalitarianism) has seen it revived. Some democracies have developed techniques of “clean” torture that tacitly acknowl­edge their illegality by inflicting pain without leaving physical traces.⁹¹ The state has repeatedly confronted supposedly existential threats from actors it regards as outsiders, beyond the protection of due process: outcasts and organized criminals subjected to “third- degree” interrogations by American police (legal until 1936); Alge­rian nationalists taking the independence struggle to French soil in the 1950s; Islamic extremists waterboarded—or worse—at covert rendition sites, beyond the law's protection.⁹² Ticking-bomb scenar­ios have been invoked to convince skeptics that torture was neces­sary, despite the damage to institutions and morality.⁹³

Torture to elicit confession was among the first, crudest, and commonest techniques the state used to penetrate its subjects' inte­riors.

At first, confession was a public event, Christians seeking forgive­ness collectively through the church's intermediation.⁹⁵ Sinners who made peace with the church contritely endured its penitential pun­ishments: praying, fasting, undertaking pilgrimages, paying fines, chastising themselves, wearing clothes that indicated their faults, and the like. In return, they expected the church to intercede for them with God.⁹⁶ As of the mid-sixth century, beginning in Ireland, confession was also held privately, penitent to priest. In this form, it was required as of 1215.⁹7 Public confession had channeled the sin­ner's redemption through the church, which intervened with God. Private confession put the sinner in more direct relation to the divin­ity, though still through a priest. Canon lawyers called confession the forum internum, the “internal court,” to distinguish it from their own external court of law.⁹⁸ Absolution resolved sin, while crime was left to the secular authorities. Protestants eventually denounced Catholic confession as a wheeze, promising redemption through mere ritual. They emphasized true confession and contrition's ability to bypass established authority as sinners pleaded directly with God.⁹⁹

Confession's privacy was reinforced with the sixteenth-century invention of a place for it to occur, the confessional. Confessions were now both private and at least nominally anonymous, encour­aging penitents to reveal all. If confession had earlier dealt with the frictions of rural life, the tensions and violence of local com­munities, it now concentrated on interior sins, often sexual, with masturbation a particular church preoccupation.¹⁰⁰ Sinners were reconciled to God, no longer to the community. Even before the Reformation attacked penances as mere empty ritual, confession focused on interiority. Early medieval confessions involved two meetings with the priest, the sinner first confessing and then after penance returning for absolution. But as absolution was extended to the laity starting in the late tenth century, confession was com­pressed to a single meeting where penance and absolution were dis­pensed together. Attention thus shifted to the sinner's attitude at the time of confession, the contrition expressed even before having undertaken penance.

A presumably apocryphal story illustrates the change. Having raped his daughter, a man asked for severe penance in confession. Given seven years, he demanded more. The priest instead reduced his penance, and this downward haggle continued until it arrived at but a single Paternoster. By this point, the man was so mortified by shame that he died on the spot, going straight to heaven.¹⁰¹ The Reformation turned confession even more inward.¹⁰² Luther distin­guished between acts that harmed the community (adultery, murder, theft, usury, slander, wrath, enmity), which were to be handled by public or sacramental confession, and “the secret sins of the heart,” or sexual fantasies. The latter could be dealt with between individual sinners and God. Insofar as they wanted the comfort of confession, they could also confess to any Christian, ordained or not.¹⁰³

Neither forced nor voluntary confession provided certain knowl­edge of interior states, however. Only a truthful confessant aligned interior conviction with outward profession. Others were con­flicted. Neither priest nor torturer knew whether conversion or confession or repentance was meant wholeheartedly. The problem with torture lay epistemologically not with those who had in fact offended. They resisted the pain—or not. The innocents, in con­trast, saw no reason to suffer for deeds they had not committed, and so they served up whatever they thought the interrogators wanted to hear, and often much more. Soviet police, for example, became alarmed during the late 1930s as torture stimulated detainees' imag­inations, and the evidence suddenly suggested that subversion was even more widespread than the authorities feared.¹⁰⁴ On the scaf­fold, the executioner never really knew whether he was killing a stubborn heretic or a genuine innocent.

Imposing orthodoxy, religious or political, some regimes wel­comed public confession or recantation as a ritual of allegiance by which dissenters acknowledged their reentry into the fold, affirmed the official creed, warned potential transgressors, and reinforced the official message of ideological unity—all regardless of what the her­etic actually thought. The authorities often settled for the mere appearance of a change of heart. The Inquisition threatened to tor­ture Galileo unless he recanted his heliocentric beliefs. They for­bade him to write more about them and kept him under house arrest for the rest of his days, which suggested they were under no illusion as to his true thoughts.¹⁰⁵ More cynically, the forced self­criticism of the Soviet mass trials turned confession into an empty exercise in abject humiliation that could scarcely have convinced even the most credulous true believer. When interrogating suspects, Chekist secret-police officers were advised not to seek evidence but to ask first what class the suspect belonged to. From that all else followed.¹⁰⁶ Chinese Communists, in contrast, seem to have con­tinued the Confucian tradition of self-criticism, seeking to change their enemies' convictions.¹⁰⁷ Either way, totalitarianism's insistence on alignment of inner and outer states, belief and act, meant that confession again took on a role akin to that in the post-Lateran world. Objective proof of guilt or innocence based on third-party evidence paled in comparison to extracting an admission from the sinners themselves as part of their forcible rehabilitation. Bereft of any real proof of guilt, the mass show trials of the 1930s were often based on confession alone. In the post-Stalinist 1960s, confession was downplayed, and proof reinstated in importance.¹⁰⁸

Short of confession, the authorities had only external signs of thought offenses to go on. Specific acts, indicating forbidden atti­tudes, were treated as offenses: following certain ritual practices (or refusing them), owning particular writings, or tuning in to spe­cific media.¹⁰⁹ Refusing to swear an oath or pledge betrayed internal attitudes. When the church began requiring annual confession, it gained insight into parishioners' ideas, such as those of heretics too guileless to lie, and also flushed out dissenters, such as Cathars, who shunned such sacraments.¹¹⁰ Even moderate Protestants rejected many of Catholicism's rituals, sacraments, and liturgy. Eating meat on Fridays or refusing to fast during Lent, they gave them­selves away.¹¹¹ In ideological systems, otherwise commonplace transgressions became fraught with new significance. Once Stalin had declared socialism achieved in 1933, petty offenses such as beg­ging threatened to undermine the new system and were considered political crimes.¹¹² A bribe is the price of doing business in a con­ventionally corrupt system. In an ideologically saturated one, brib­ery often became a crime against the state. Economic crimes were counterrevolutionary in Maoist China. In the 1980s, they were de­politicized as normal offenses. Nonetheless, even today smuggling, foreign-currency speculation, public-property theft, and bribery remain political offenses in China. As actions against socialism and thus the state, they are punished by death.¹¹³ And assassination, as we have seen, is not just murder. Even in secular, allegedly unideo- logical Western nations, it is difficult to shake the residue of such sentiments and to treat the killing of a leader as mere homicide.