Torture

Stereotypical characterisations of ‘medieval torture' misdate the peak of judicial violence in Europe. Torture had been a regular investigative techni­que in classical Rome, but the practise of it gradually waned after the fall of the empire in the West.

During the early medieval period, it is true that both secular and eccle­siastical judges sometimes subjected defendants to the judicial ordeal, a ritual by which the innocence or guilt of the defendant was evaluated during a painful test involving water or fire. Divine intervention was thought to determine the result. But the ordeal was an exceptional procedure and, as early as 1215, was outlawed by the Catholic Church. Although judicial combat continued to survive for some time, its authority was gradually undermined by the self-conscious reintegration of Roman law into criminal procedure and the training of lawyers at universities, in Italy and France and later elsewhere.

Although the return of Roman law in Europe justified torturing suspects, it is simplistic to associate only the Roman tradition with judicial violence. Roman law also allowed for conflicts to be resolved by financial compensa­tion and encouraged judges to mitigate sentences: children and pregnant women were exempt from torture and women in general were held less responsible for their actions due to their perceived weakness of intellect and judgement. Only recidivists with proven criminal intent were subjected to the full impact of the law in Europe. In England, where Roman law had little impact on the common law tradition after the thirteenth century and judicial torture was never made legal, final sentences were more uniform and no less violent than on the Continent. Despite differing legal traditions and proce­dures, judicial violence in England also peaked during the sixteenth century and declined after 1630.

The church was at the forefront of legal developments in the twelfth century, and fear of heresy soon encouraged it to fertilise canon law with the Code of Justinian. By the mid thirteenth century the papacy had appointed Dominican and Franciscan monks as inquisitors to search out individuals who believed false doctrines and, if possible, to reform their views and return them to orthodoxy. At first, the use of interrogative torture in order to determine innocence or guilt was discouraged, but legal theory that equated heresy with the Roman crime of treason reconciled the papacy to the practice.

Inquisitions, which began as temporary judicial mandates, sometimes evolved into long-standing institutions: for example, in Spain, Ferdinand and Isabella approved the establishment of a permanent inquisition in 1478 under the authority of the Pope. The Spanish Inquisition became renowned for large-scale public rituals of penitence, or autos-da-fe, during which hundreds of convicted heretics did penance or were released to secular authorities to be flogged or burned at the stake. Paintings and printed descriptions of these spectacular rituals served as propaganda, demonstrating the church's determination to stamp out religious deviance. The will to violence was fuelled by a conviction that God mandated the elimination of heresy and that the means to do so, inquisitorial procedure including torture, was an effective means of establishing the truth.

Secular jurisdictions followed suit. Between 1200 and 1400 local criminal law statutes increasingly authorised torture when investigating serious crimes and defined some crimes as punishable by execution. Italian cities were early adopters of torture, though often at first citizens were exempt. North of the Alps, local statutes and court records also document the use of judicial torture to test the innocence of some accused criminals: Flanders in 1294; Vienna in 1277; Lausanne in 1368. In France, torture was first authorised in 1254, though its practise at the Parlement of Paris, the largest appeals court in the country, remained rare until the end of the fifteenth century.

By the sixteenth century most European states employed torture during interrogation sessions to determine whether or not a suspect was guilty and executed a minority of convicted criminals in notoriously painful ways - burning at the stake, breaking on the wheel, drawing and quartering, and drowning - in addition to the more common practices of hanging and beheading. In an attempt to regulate judicial procedure throughout the Holy Roman Empire, Charles V in 1532 promulgated the Carolina, a legal statute that mandated suspects could be tortured only once unless new evidence came to light.

Torture usually took place during the investigative portion of the trial, before sentencing, in order to determine whether or not the defendant had committed a crime. Bounded by legal statutes shaped by Roman tradition, its practice was broadly consistent across western and central Europe. European investigative magistrates only arrested suspects after they had conducted a public inquiry into a crime, amassed considerable witness testimony as well as circumstantial evidence, and identified a possible culprit. Soon after arrest, without the benefit of a defence lawyer and often without knowing the charges being brought against them, defendants were interrogated in the hopes that they would spontaneously admit that they had committed the crime under investigation. Many defendants accused of minor crimes did confess quite readily; as a result, they were not tortured and their cases were decided quickly. Defendants accused of serious crimes, however, tended to be more circumspect. This unwillingness to admit guilt posed a legal problem for magistrates. According to medieval legal theory, a full proof of a crime could only be established if the defendant confessed or if two reliable eye­witnesses testified to his guilt. Although they were willing to impose lesser sentences such as banishment without a full proof, few judges before 1650 were willing to execute defendants without it. Common torture procedures included the strappado, raising the defendant on a pulley with his hands tied behind his back, and the rack, which involved the painful extension and compression of the limbs.

It is difficult to ascertain how often and how intensively torture was practised, in part because it was such a standard procedure that it was not always mentioned in the final sentence of a trial, often the only surviving documentation. Nevertheless, evidence from a handful of courts in Florence, Paris, Bordeaux and Geneva suggest that approximately 5 to 20 per cent of all defendants were subjected to torture during the late fifteenth and sixteenth centuries.^[637] In France, most defendants at the Parlements, the sovereign courts of appeal, were tortured only once, as mandated by French law, but in Geneva, in line with German practice, many accused criminals were subjected to multiple sessions. Torture in early modern Europe is most commonly associated with witch hunting, and it is true that many of the approximately 30-50,000 individuals who were convicted and executed for the crime of witchcraft were tortured, often repeatedly. In some commu­nities, witchcraft, a form of heresy, was considered to be an exceptional crime and, as a result, suspects, most of them women, were tortured more intensively than were other defendants. Nevertheless, many jurisdictions did not experience witch crazes. Instead, it was men accused of aggravated murder, treason, and, most importantly, theft who made up the vast majority of suspects tortured during the early modern period.

Judges were well aware that torture could produce false confessions. In 1580, when French essayist and judge Michel de Montaigne observed that torture ‘was more a test of patience than of truth; and those who can bear it hide the truth, and those who cannot suffer', he was only articulating a view that was widely shared by his fellow magistrates.^[638] Concerns that some individuals were hardened against the pain of torture and that some inquisitors were abusive were long-standing.