TORTURE. — In the strictest and most precise sense, (judicial) torture is any judicial procedure by which an attempt is made to obtain from the accused or another procedural subject, by force or artifice, a confession or other declaration useful for ascertaining facts that cannot otherwise be ascertained, with the ultimate aim of concluding the trial by basing the sentence on the truth thus obtained.
The practice of compelling a person by violence to acknowledge or indicate something against their will is so obviously human that it is difficult to imagine an age in which it was not known. More important would be to establish under what historical conditions this practice became established among the institutions of judicial law. The question cannot, of course, be resolved by simply citing names, dates, places, or persons; one can only observe, in general terms, that the introduction of the judicial use of torture presupposes the overcoming of that more primitive stage of evidentiary law in which the sentence was based on the outcome of trials by ordeal or other irrational proofs.
Among the peoples of antiquity, trials by ordeal and torture divided the field between them, with the former prevailing where legal life was dominated by mystical conceptions, and the latter prevailing in those ages and countries where such conceptions were giving way to a more or less understood realism. Documented only sporadically (unlike trials by ordeal) in the ancient Near East, in Greece and Rome torture (βασανισμός, quaestio per tormenta) underwent a historical development that can be said to have been parallel, allowing for a lag of a few centuries. Having quickly fallen into disuse after rare historical examples, classical Greek democracy and Republican Rome widely employed torture against slaves, whose statements were not considered sufficient if merely sworn, unlike those of free men, who were exempt from torture; exceptions to this latter rule were made, within certain limits, on the one hand by the practice of Greek tyrannies and more so of Hellenistic ones, and on the other by Roman imperial legislation. Roman law, alongside the torture of free men, prohibited the torture of slaves of the accused in cases concerning their masters (i.e., to testify against their owners), always out of respect for the personality of the free man; but even this prohibition was circumvented from Republican times in very serious cases, and more widely later, when the privileges once enjoyed by all free men were restricted to a few classes of persons. The norms of imperial law on this matter were condensed in the titles *De quaestionibus* of the *Digesta* (XLVIII, 18) and of the *Codex* (IX, 41). Outside any classification remain the tortures inflicted during the great persecutions of Christians, not to make them confess to the crime of opinion attributed to them, but, on the contrary, to force them to renounce their faith and sacrifice to the gods; the debate on the logic or illogic (from the standpoint of strict law) of this cruel procedure extends from Tertullian, Minucius Felix, and St. Cyprian down to the present day.
With the barbarian invasions, torture declined. It is debated whether the barbarians knew of it before coming into contact with Roman peoples; it is certain, however, that in general they were still attached to trials by ordeal, which they reintroduced into the lands of Europe with frequent practice. Nevertheless, they admitted torture for slaves, and exceptionally even for free men, in the laws of the Salian Franks, Visigoths, Bavarians, Burgundians, and Alamanni; perhaps the Lombards were not ignorant of II. Other peoples, remaining outside the Roman cultural sphere for mainly geographical reasons, did not receive it into their laws; and when, after the brief Carolingian renaissance, Roman culture was submerged everywhere by Germanic customs and conceptions, the legislative history of torture shows a gap of nearly four centuries (9th–12th), though various scattered attestations and the uninterrupted mention in juridical school compilations suggest that this did not correspond to an equally large gap in actual practice.
From the 12th century onward, the reform of Roman law studies and the strengthened awareness of the authority and duties of the State drove trials by ordeal into the shadows and restored torture to honor. By removing judicial functions from the precarious authority of feudal lords and private vendettas and arbitration, and by increasingly introducing the inquisitorial process alongside the accusatory one, both the laws of the great territorial states (beginning with Frederick II in Sicily, Louis IX in France, and Alfonso X in Castile) and the communal statutes of Italian cities (first that of Verona in 1228) and the corresponding laws or local customs (sometimes much earlier than any possible Romanistic influence) of foreign cities, particularly in France, Flanders, and Germany, made wide use of torture. The Holy See followed the trend with caution: Gratian’s dictum, of remote pseudo-Dionysian origin, that “confession should not be extorted by torture” (*Decretum Gratiani*, C. 15, q. 6, § Quod vero), remained as a general principle, but already in decretals and doctrinal writings of the 12th century, recourse to torture was, if not commanded, presupposed as admissible; and Innocent IV, with the bull *Ad extirpanda* (§ 25), provided, among other things—preceded in this by statutory legislation—that those accused of heresy could be subjected to moderate torture (1252): a norm that was subsequently widely applied, as long as the institution of torture remained in force, in harmony with the equating of heresy with treason and the consequent application to it of a harsher procedure than that for common crimes. Yet it is only in Roman law—though most laws and especially statutes intended merely to supplement it rather than replace it—that the juridical theory of torture found its foundation, elaborated by jurists (civilists and canonists alike) with varying attitudes between the 12th and 18th centuries; Azzo and Accursius, Bartolus and Baldus, left unmistakable marks upon it, and criminal jurists of the period treated it thoroughly. Among the many monographs devoted to it, the *Tractatus de tormentis* by an unknown Bolognese scholar (12th century) and F. dal Bruno’s *De indiciis et tortura* (1495) stand out.
In the system of judicial torture as constructed by the doctors of common law, the field of application of this means of proof was generally reserved for the most serious criminal cases, and the normal subject of torture was the accused. The gravity of the case was usually determined by the penalty prescribed for the crime, and the measure varied enormously from place to place and time to time in accordance with the differing severity of penal systems. Yet torture could also be applied in certain civil cases, chiefly those arising from crime or quasi-delict: the most frequent example was bankruptcy proceedings. And alongside the guilty party (i.e., the accused or defendant in modern terminology), other subjects could also be subjected to torture, such as a witness whose testimony wavered or contradicted itself, or who appeared suspect simply because of low social status or infamy, and in very particular cases even the accuser if infamous or otherwise suspect.
Torture could not be applied indiscriminately to all persons for whom the conditions outlined above were met. In classical Roman law, in fact, the very status of free citizen was sufficient to exempt one from torture. But from the imperial age onward, the substantial change in the relationship between citizen and political power brought with it the emergence of a different principle, according to which subjection to torture was the rule and immunity the exception.
Exemptions were granted for physical reasons to children (up to the age of 14, unless a different limit was set), the elderly (generally beyond 60 or 70 years of age), pregnant women (to whom interpreters added women in childbed up to the fortieth day after delivery, and nursing mothers), the sick, the wounded, and finally—if and insofar as they were unable to follow the interrogation—the insane and the deaf-mutes. Moreover, apart from trials for treason against divine or human majesty in the broadest sense, and with the reservation that none of the prerogatives in question were exempt from contestation, there existed: an immunity of nobles, suppressed by many particular statutes, if not indeed (as in the case of communal laws against magnates in the 13th–15th centuries) reversed; an immunity of men-at-arms, fiercely opposed by Renaissance jurists; an immunity of government officials, often overturned by the shifting fortunes of political events; an immunity of ecclesiastics, granted by Roman law but rejected by canonistic doctrine; and finally an immunity of judges, lawyers, doctors, scholars (and in general persons useful to the community by reason of their learning or merit), which was mostly ignored by written laws but repeatedly proclaimed by jurists.
Before issuing the interlocutory order for torture, the judge had to notify the subject of the established evidence and other required conditions, and had to grant him, with no success, time and opportunity to speak or otherwise defend himself. The interlocutory order, always appealable, could not according to many procedures be issued by a single judge; even in heresy trials falling under the Inquisition, prior agreement between the inquisitor and the local ordinary was required. It was always for the judge to direct and be responsible for the torture and interrogation, with the executioner assisting in the physical application, the clerk drafting the record, and often a physician on hand as a safeguard against accidents.
The forms of torture were many and varied. The most common, the one that in everyday speech was equated with torture itself (as had already happened with the wheel among the Greeks and the *eculeus* among the Romans, instruments that bound the patient’s body while loosening all his joints), was in Italy (less so abroad) during the centuries of the *ius commune* the *tormento della corda*, which consisted in suspending the subject in the air by his hands tied behind his back, using a rope passed through a pulley fixed to the ceiling of the room, holding him in that position for a time ranging from a few moments to an hour, and in the gravest cases letting him drop suddenly almost to the ground (*tratti di corda*). Other common torments included: the *stanghetta*, by which the ankle was compressed between two iron wedges; the *cannette*, which were placed between the fingers and tightened with a cord; fire, used to scorch the soles of the feet for a few moments; sleeplessness, imposed for many hours in an uncomfortable position (torture originally essentially mental, later transformed); water, forced down in liters; and countless others. All were graded in severity according to the gravity of the case and the subject’s physical capacity for resistance.
The judge was bound by laws and jurisprudence not to apply torture outside the prescribed cases, and even then to apply it “ut moderatae rationis temperamentae desiderant” (Arcadius Carisius, in *Digest*, 48.18.10.3) and more concretely “citra membri diminutionem et mortis periculum” (Innocent IV, bull *Ad extirpanda*, loc. cit.), and his responsibility was not merely theoretical. For the case of unlawful torture, as for that of excessive torments, adequate penalties were provided, which could extend to death, especially when the illegal torture had resulted in the death of the tortured person. Nor was the omission of particular formalities established as a guarantee of the defendant’s rights exempt from penalty.
As regards legal effects, when a witness was subjected to torture (*t.*), his resistance generally sufficed to confirm and validate even a suspicious prior statement made by him, free from coercion; his contradiction, however, had the effect—though with reservations and exceptions—of depriving the previous testimony of credibility, since it appeared tainted. When torture was used to compel an accused person or a convicted individual to provide information about accomplices (a practice not admitted in Roman law, nor in common law until around the 16th century, except in exceptional cases for more serious crimes, but later becoming standard and constituting a distinct legal figure, the *question préliminaire* of the French), then an inquisition could be opened against those accused of complicity, and they too could be subjected to torture, provided other evidence existed. But in the most common case, as noted, torture was applied to the accused with the immediate aim of securing a confession. Once obtained, the accused was brought before the court to ratify it, free from torment and at a distance in time (usually after 24 hours); this ratification, and only this, determined the fate of the confessed culprit, for a confession extracted but later confirmed was legally equivalent to a spontaneous one, whereas an extracted confession not confirmed was legally null, save as an indication sufficient, like any other new evidence, to justify—usually—the repetition of torture. Torture could, as a rule, be repeated up to three times; if the accused confessed each time but refused to ratify, and if his confessions did not furnish elements enabling proof of guilt through logic alone, nothing remained but to release him for lack of evidence, possibly imposing certain guarantees upon him as a suspect person. Finally, an accused who maintained his innocence to the end, resisting torture, thereby earned a full acquittal. Yet all legal norms governing the effects of torture (*t.*) were never so rigid as they may appear in a brief outline: between the outcome of torture and the content of the sentence, there was no necessary or automatic causal link comparable to that characteristic of trial by ordeal in another historical setting.
Such was the function of torture (*t.*) and its place in the trial according to theory. In practice, things often went differently: practice, with its inconsistencies, injustices, and cruelties, kept alive those general problems—both logical and moral—that the learned theory had sought to suppress or silence.
To the Greeks and Romans, the problem of torture was not unknown; yet it remained within the realm of cold judicial logic. A moral evaluation of the institution arose only with Christianity, and in the constant thought of the patristic tradition it was distinctly negative: Tertullian declares the application of torture unworthy of a Christian judge (*De corona*, ch. 11; *De idololatria*, ch. 17), St. Augustine denounces the injustice of inflicting a certain punishment to uncover an uncertain crime (*De civitate Dei*, 19, 6), and Pope Nicholas I imposed upon the Bulgarian people an abolition of torture that, though on the margins of grand history, is the first on record (*Epistolae et decreta*, 97, 86). Yet when the institution returned in full force throughout civilized Europe (13th century), the ideal condemnation served only to curb and moderate the renewed practice, now firmly entrenched in a legal system from which it could not be detached without endangering the stability of the entire structure. The long silence of civilians and canonists on the foundations of torture is evidence—not of disinterest—but of awareness of that danger, and in any case is tempered by their repeated admonitions to moderation directed to judges and practitioners. A reconsideration of the problem, and its expansion in social and political terms, occurred only in the 16th century, aided by a new humanistic familiarity with ancient authors, both pagan and Christian, and spurred by the intensification of criminal justice under absolutist governments and the spread of witch trials. Against torture, authoritative voices now arose, and the idea began to take hold that it was not a necessary evil to which one must resign oneself, but a barbarism that could and should be dispensed with. Not long afterward, the first books advocating abolition began to appear; all shared a strong religious tone, whether by Catholic authors such as Fr. von Spee (*Cautio criminalis*, 1631), J. Schaller (*Paradoxon de tortura in Christiana republica non exercenda*, 1657), A. Nicolas (*Si la torture est un moyen seur à vérifier les crimes secrets*, 1682), or by Protestants such as J. Graefe (*Tribunal reformatum*, 1624) or M. Bernhard (*De tortura ex fortis Christianorum proscribenda*, 1705); by the early 18th century, they were too numerous to count. The Enlightenment of the 18th century contributed not merely thought but decisive action: the proposals, petitions, polemics, and invectives of F. M. de Voltaire, C. Beccaria, P. Verri, and J. von Sonnenfels had the effect, almost immediate, of abolishing torture in some of the major states and of creating in others the conditions that led everywhere to its abolition between the last third of the 18th century and the first of the 19th.
Thus the era of legal torture came to an end; yet torture did not thereby disappear. This is not to speak of isolated abuses, but of a general phenomenon. Exceptional in Europe and opposed by written law and common juridical conscience, procedures aimed at extracting confessions from accused persons by breaking their nervous resistance—so-called third-degree interrogations—or even by depriving them of moral freedom through drugs designed to temporarily suppress full consciousness, have recently taken root in the judicial practice beyond the Iron Curtain and across the ocean. In such procedures, the ancient mental torture lives on in its fullest sense, technically modernized and—alas—deprived of those safeguards with which old jurists always sought to temper it as the most atrocious of all forms of torture.
MORAL ASPECT. — The lawfulness or unlawfulness of torture (*t.*) may be considered from two perspectives: its application as a penalty, and its use as a means of investigation.
There can be no doubt as to the lawfulness of torture as an afflictive penalty, assuming the lawfulness of the death penalty and of mutilation and flogging, which are equally afflictive. To intimidate an innocent person in order to extract a secret is doubly illicit, both as an unjust act of violence and as extortion of a secret (v.). The question of the lawfulness of torture as a means of judicial investigation—applied to individuals already more or less gravely suspected, for the purpose of extracting a judicial confession—has received varying answers.
For some, assuming the judge’s right to investigate in order to ascertain the truth of facts, when in certain circumstances the ordinary means have been exhausted, the common good may require that the accused be subjected even to coercive means, such as torture. This is a matter of society’s interest in ascertaining the responsibility of a particular individual, a right to proof. The individual’s right to remain silent and to express himself freely is not denied, but this yields to society’s right to know who threatens the common good and to vindicate the violated legal norm.
The disadvantage of failing to discover the perpetrator of a particular crime would sometimes cause far greater harm to society than could result from the violation of freedom involved in compelling a particular individual to manifest himself (J. De Lugo, *De iustitia et iure*, disp. XXXVII, sect. XIII, ed. Fournials, VII, Paris 1869, p. 724).
Nevertheless, it is beyond doubt that even within this line of thought, for torture to be licit it must be contained within well-defined limits: a) there must already be evidence against the subject, constituting a *semplen* proof (extrajudicial confession, testimony of a witness above all suspicion, etc.); b) the person must be subject to torture and not be immune from it by particular circumstances of natural law or by prescription of positive law; c) every other, milder means of investigation must have been exhausted; d) the torture must not be absolutely or relatively unbearable for the subject to whom it is inflicted; e) the subject must be allowed full opportunity to ratify or retract any external confession (cf. St. Alphonsus Maria de’ Liguori, *Theologia moralis*, IV, cap. 3 art. 3, n. 202, II).
Today, however, the prevailing current of opinion upholds the safeguarding of human rights, by virtue of which the guilty party has a right to the inviolability of his soul and body, and against this fundamental right social or common-good considerations cannot prevail. Moreover, to demand from the guilty party a confession of his misdeed seems to exceed what can be required of ordinary human nature and to trespass into a realm where heroism is demanded. And heroism, in the vast majority of cases, can be commended, not imposed. Furthermore, the guilty party has a right to his reputation, even if it is merely apparent and false. Reputation, in fact, is equated with an external good that is realized by the individual person of each person. Over such an external good, when it is real, the human being can claim full and absolute right, excluding any other. The right to apparent reputation, if it cannot be deduced from the same right of man, must be affirmed *ex inconvenientibus*, lest peace and tranquility be compromised by the obligation—even if licit—to reveal others’ hidden faults in every instance.
Against this argument, which is undoubtedly the weakest, it must be immediately observed that the right to false fame is relative and limited: being founded on the common good, it could cease when the good of others so requires. Other considerations carry considerable weight, especially today, when perfected methods of investigation through scientific expertise, etc., render recourse to means such as torture far less useful. Public opinion, which carries weight in the use of means to achieve certain social ends, is today decidedly opposed to the use of torture. Yet such a system cannot be said to be entirely and everywhere abolished in practice in judicial investigations or police procedures. And it is doubly dangerous because there are lacking those guarantees that would legalize the application of torture. In any case, a truly civilized nation would today recoil from introducing it into its penal code.
Instead, there is discussion about the advisability of introducing other investigative methods, even more damaging to the freedom of confession, such as narco-analysis (v.), where the assault on personality is even more insidious and total. In canon law after the *Codex Iuris Canonici*, the use of any coercion to obtain the confession of the guilty party is no longer permitted, and it is expressly stated that the guilty party is not bound to tell the truth when *agatur de delicto ab ipso commisso* (can. 1743 § 1; cf. also can. 1947).