FUSTIGAZIONE. — From Lat. fustigatio, punishment by the whip, rod, or scourge, made of strips of
leather. It consists in beating the person subjected to it with rods or sticks in order to punish a crime or to extort a confession. Together with flagellation, it belongs to the category of positive, remissible temporal penalties, which are less grave than the irremissible ones, never employed by the Church, such as mutilation, burning, etc.
For punitive and corrective purposes, f. was used either as a manifestation of magistrates’ coercitio or, under the Empire, both as an autonomous penalty and as an accessory penalty. Also recalled by St. Paul in I Cor. 4:21, it was applied in the Church, together with the other temporal penalties, especially after the seventh century under Roman and barbarian influence, and was also practiced against clerics and monks (cf. St. Augustine, De civitate Dei, 19, 17; 21, 11; Conc. Venet. [a. 465], can. 13; Conc. Agathonense [a. 506], can. 41; Conc. germ. [a. 742], can. 6). It is also contemplated in the Decree (8, D. 45; 6, C. 11, q. 1) and in the Decretals (1, X, 5, 2); but the canonists in doctrine and the Church in its practice increasingly circumscribed its use over time, until, having been passed over in silence by the Council of Trent, it disappeared almost completely after the French Revolution from civil legislation as well.
As a form of torture, used by the courts to wrest from the accused a confession of the crime, f. was commonly applied by the Greeks and Romans against slaves in order to make them tell the truth. In the Middle Ages it was in force in all the states of Europe. This means of obtaining information was soon introduced into ecclesiastical practice as well, since it was in common use in lay courts. St. Augustine praises the tribune Marcellinus because he resorts to f. to obtain the confession of the Donatists (Ep. 133; PL 32, 509). The Church, however, always strove to eliminate such a barbarous method from criminal proceedings, as appears from a reply of Pope Nicholas I to the Bulgarians (F. Labbé, Concilia, VIII, col. 544) and from the Decree of Gratian cited above. But the revival of the study of Roman law in the thirteenth century led the jurists to begin to feel the need to resort to torture; and this means also entered ecclesiastical courts. It was Innocent IV who, with the bull Ad exstirpando (15 May 1252), admitted torture in the mild form of flagellation and f. (“citra membri diminutionem et mortis periculum”) in order to extort confessions and denunciations, given the urgent need to eradicate heresy effectively and rapidly, since it had become in those times a grave danger to the Church and society. By now, however, no civilized people resorts any longer (at least in theory) to such expedients to make people tell the truth; and the CIC establishes that the offender may not be compelled to confess his own crime (can. 1473 § 1). The former use of such penalties to extort confessions of crimes, a practice that also became established in ecclesiastical courts, is explained by the mentality and requirements of the times, since this is not something intrinsically evil. Moralists in fact hold that such a means, however violent and dangerous, is licit when reasons of the public good require the condemnation of the accused, while, on the other hand, the evidence brought against him is insufficient to establish his guilt as certain, but makes it only sufficiently probable.
It is no longer licit, however, when positive law excludes it; hence the police forces, which are naturally obliged to observe the law, may no longer continue to use II. The same should be said of f. as a penalty. When certain nations have abolished it or have signed international conventions against the use of such corporal penalties, they may no longer continue to use them in their territory.