Flogging

FLOGGING. — From Lat. fustigatio, the penalty of the rod, the switch, the whip, made of strips of leather. It consists in beating the patient with rods or with sticks in order to punish a crime or to extort a confession. It belongs, together with flagellation, to the class of positive temporal punishments that are remissible, which are less grave than those that are irremissible, never employed by the Church, such as mutilation, branding, etc.

For punitive and emendatory purposes f. was used either as a manifestation of magisterial coercitio, or, under the Empire, both as an autonomous penalty and as an accessory penalty. Recalled also by St. Paul in 1 Cor. 4:21, together with the other temporal punishments it found application in the Church especially after the 7th century through Roman and barbarian influence, and it was practiced also 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 contemplated as well in the Decretum (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 over time circumscribed its use ever more, until, passed over in silence by the Council of Trent, it disappeared almost completely after the French Revolution even from civil legislation.

As a torment, used by justice to wrest from the accused the confession of the crime, f. was commonly applied by the Greeks and the Romans against slaves to make them tell the truth. In the Middle Ages it was in force in all the states of Europe. In ecclesiastical practice too this means of information was introduced very early, since it was in current use in the lay tribunals. St. Augustine praises the tribune Marcellinus because he has recourse to f. to obtain the confession of the Donatists (Ep. 133; PL 32, 509). The Church, however, always strove to make such a barbarous method disappear from criminal process, 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 13th century brought it about that the legists began to feel the need to have recourse to torture; and this means re-entered the ecclesiastical tribunals as well. It was Innocent IV who with the bull Ad exstirpanda (15 May 1252) admitted torture in the mild form of flagellation and f. ("citra membri diminutionem et mortis periculum") in order to wrest confessions and denunciations, given the urgent necessity of extirpating with efficacy and rapidity the heresy that had become in those times a grave danger for the Church and society. But by now no civilized people has recourse any longer (at least in theory) to such expedients to make the truth be told; and the CIC [Code of Canon Law] sanctions that the guilty party cannot be obliged to confess his own crime (can. 1473 § 1). The past use of such penalties for the purpose of extorting the confession of crimes, which became established also in the ecclesiastical tribunals, is explained by the mentality and the exigencies of the times, given that it is not a matter of something intrinsically evil. Moralists indeed hold that such a means, however violent and dangerous, is licit when reasons of public good demand the condemnation of the accused, and on the other hand the proofs adduced against him are not sufficient to demonstrate as certain his guilt, but render it only sufficiently probable.

It is no longer licit, however, when positive law excludes it, and therefore the police forces too, which are naturally bound to observe the law, cannot continue to make use of it. The same is to be said of f. as a penalty. When certain nations have abolished it or have signed international conventions against the use of such corporal punishments, they cannot continue to make use of them in their territory.

Luigi Fini