Torture

TORTURE. - In the narrowest and most precise sense, (judicial) torture is any judicial proceeding by which an attempt is made to extort from the accused or from another party to the trial, by bending his contrary will through force or artifice, a confession or other statement useful for establishing facts not otherwise established, with the ultimate aim of concluding the trial by basing the sentence on the truth thus obtained.

To compel a person by violence to acknowledge or indicate something against his will is a manner of proceeding so humanly obvious that it is difficult to imagine an age in which it could have been unknown. It would be more important to establish under what historical conditions the adoption of that manner of proceeding among the institutions of judicial law matured. The question naturally cannot be resolved by pointing to names, dates, places, persons; one can only observe, in a general way, that the introduction of the judicial use of torture presupposes that the more primitive stage of the law of evidence, in which the sentence is based on the outcome of judgments of God or other irrational proofs, had been surpassed.

Among the peoples of antiquity, judgments of God and torture divided the field between them, the former prevailing where legal life was dominated by mystical conceptions, the latter prevailing in those ages and in those countries in which such conceptions were giving way before a realism well or ill understood. Documented only sporadically (unlike judgments of God) for the ancient East, in Greece and in Rome torture (βασανισμός, quaestio per tormenta) presents a historical development that may be called parallel, account being taken of a lag of some centuries. The use of judgments of God having soon been lost after rare historical examples, the Greek democracy of the classical age and republican Rome knew and applied torture extensively for slaves, to validate whose declarations the oath was not deemed sufficient, as it was for free men, who were immune from torments; they departed from this latter rule, within certain limits, on the one hand through the practice of the Greek and still more the Hellenistic tyrannies, on the other through the Roman legislation of the imperial age. Roman law, alongside the torture of free men, prohibited the torture of the slaves of the accused in caput dominorum (that is, to make them testify against their masters), always out of respect for the personality of the free man; but from this prohibition too exceptions were made as early as the times of the Republic, in very grave cases, and more extensively afterwards, when the privileges once proper to 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 on the Christians, not to make them confess themselves guilty of the crime of opinion imputed to them, but, on the contrary, to force them to renounce their faith and sacrifice to the gods; the discussion of the logic or illogic (in the face of strict law) of the ferocious procedure extends from Tertullian, from Minucius Felix, from St. Cyprian down to our own days.

With the barbarian invasions torture declined. It is debated whether the barbarians knew it before coming into contact with the Roman peoples; it is certain that in general they were still attached to judgments of God, of which they brought back into the lands of Europe a frequent practice. Nevertheless the Salic, Visigothic, Bavarian, Burgundian and Alemannic laws admitted torture for slaves, and exceptionally also for free men; perhaps the Lombards were not ignorant of it. Other peoples who remained estranged, for reasons chiefly geographical, from Roman culture did not receive it in their laws; and when this culture, after the brief Carolingian rebirth, ended up everywhere submerged by Germanic customs and conceptions, the legislative history of torture shows a gap of almost four centuries (9th-12th), to which, however, various scattered attestations and the uninterrupted mention in the legal compilations of the schools allow us to hold that there did not correspond an equally great gap in actual practice.

From the 12th century onwards, the revival of the study of Roman law and the strengthened consciousness of the authority and the tasks of the State drove judgments of God back into the shadows and restored torture to honour. With the functions of justice withdrawn from the precarious authority of feudal lords and from the vendettas and private combats of individuals, and with the inquisitorial procedure increasingly introduced alongside the accusatorial, a large place was given to torture both by the laws of the great territorial States (beginning with Frederick II in Sicily, Louis IX in France, Alfonso X in Castile) and by the Italian communal statutes (first that of Verona in 1228) and the corresponding local laws or customs (sometimes much earlier than any possible Romanistic influence) of foreign cities, in particular French, Flemish and German. The Holy See followed the current with caution: the dictum of Gratian, of remote Pseudo-Isidorian origin, " quod... confessio cruciatibus extorquenda non sit " (Decr. Grat., C. 15, q. 6, § Quod vero), remained as a generic 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 persons accused of heresy could be subjected to a moderate torture (1252): a norm afterwards widely applied, as long as the institution of torture remained in force, in harmony with the equating of heresy with lèse-majesté and with the consequent application to it too of a procedure more severe than for common crimes. But only in Roman law, which moreover the majority of laws and especially of statutes intended merely to supplement and not to replace, has its foundation the legal theory of torture, elaborated by the interpreters (civilists and also canonists), with freedom of attitudes, between the 12th and the 18th century; Azzo and Accursius, Bartolus and Baldus left on it unmistakable marks, and all the criminalists of the age treated it thoroughly. Among the many monographs that these dedicated to it, the Tractatus de tormentis of an unknown author of the Bolognese school (12th century) and the De indictis et tortura of F. dal Bruno (1495) stand out.

In the system of judicial torture as it was constructed by the doctors of the common law, the field of application of this means of proof was in general offered by the most serious criminal causes, and the normal passive subject was the accused. The gravity of the cause was established for the most part by the criterion of the penalty provided for the crime, and the measure varied enormously from place to place and from time to time in harmony with the differing severity of penal systems. But torture could also be applied in certain civil causes, principally in those originating from a crime or quasi-crime: the most frequent example, bankruptcy cases. And alongside the accused (that is, the defendant or the respondent in modern terminology) there could also be subject to it the witness, when in his deposition he wavered or contradicted himself, or when more simply he appeared suspect because of his low social condition or because he was infamous, and in quite particular cases the accuser himself, if infamous or otherwise suspect.

Torture could not be applied except under certain conditions. In the normal case of torture of the accused there was required: on the one hand, full certainty that the crime had been committed; on the other, a relative uncertainty regarding the person of the guilty party, relative in the sense that one or more persons were burdened by various not slight indications, or even by a single indication, provided it was of such urgency (as it was said) as to constitute a semi-full proof, but a full proof had not yet been obtained; finally, the lack of any other means by which one could legally arrive at obtaining that same proof. From these conditions, already all adumbrated by the Roman sources, the interpreters formed a complex theory, intended to integrate logically the system of torture. Analogous conditions held for the torture of the respondent, of the witness and of the accuser, account being taken of their different procedural position and of the different function that the application of torments had in their case. The principle, already Roman, according to which the latter could not constitute the initial act of a process, was the summary or rather the common foundation of those conditions.

Not all persons for whom the presuppositions enumerated thus far held could be indiscriminately subjected to torture. In classical Roman law, indeed, the very status of free citizen was sufficient to exempt one from torture. But from the imperial age onward the substantial change in the relations between the citizen and political power had brought with it the birth of a different principle, according to which subjection to torture was the rule and immunity the exception. Those who enjoyed exemption for physical reasons were children (up to the age of 14, unless a different limit applied), the old (generally, over 60 or 70 years of age), pregnant women (to whom the interpreters added women in childbed up to the fortieth day after childbirth, and nursing mothers), the sick, the wounded, and finally, if and insofar as they were incapable of following the interrogation, the insane and the deaf-mute. Furthermore, excluding trials for lese majesty divine or human in the broadest sense, and with a reservation for the contestations from which not one of the prerogatives in question was exempt, there were: an immunity of nobles, suppressed by many particular legislations, if not indeed (as in the case of the communal laws against the magnates in the 13th-15th centuries) outright overturned; an immunity of men-at-arms, fiercely opposed by the jurists of the Renaissance; an immunity of men of government, often overcome and swept away by the turmoil of political events; an immunity of men of the Church, granted by Roman law but rejected by canonical doctrine; and finally an immunity of judges, advocates, doctors, men of learning (and of persons in any case useful to the community for their learning or worth), for the most part ignored by written laws, but proclaimed repeatedly by the jurisconsults.

The judge could not issue the interlocutory sentence of torture unless he had first notified the subject of the established indications and the other required conditions, and had, with negative outcome, given him time and means to clear himself or otherwise to defend himself. The interlocutory sentence, always appealable, could according to many procedures not be issued by a single judge; even in trials for heresy within the competence of the Inquisition, the prior agreement of the inquisitor and the ordinary of the place was required. It was always the judge, moreover, who had the direction and responsibility of the torture and of the interrogation, with the assistance of the executioner for the actual execution, of the clerk for the drawing up of the record, and often of the physician as a safeguard in case of accidents.

The kinds of torture were the most varied. The most common, the one that in everyday speech was identified with torture itself (as had already happened with the wheel among the Greeks and the eculeus among the Romans, instruments both of which the body of the patient was bound to, dislocating all his joints), was in Italy (abroad, less so) during the centuries of the ius commune the torment of the cord, which consisted in hoisting the subject into the air, with his hands tied behind his back, by means of a rope running through a pulley fixed to the ceiling of the room, holding him in that position for a time varying from a few moments to an hour, and then, in the graver cases, letting him fall back down suddenly almost to the ground (tratti di corda). Other common torments were: the stanghetta, with which the ankle was compressed between two iron blocks; the cannette, which were placed between the fingers of the hands, tightened with a small cord; fire, with which the feet, smeared with lard, were scorched for a few moments; the veglia, to which the subject was forced for many hours in an uncomfortable position (torture, in origin, essentially mental, later transformed); water, made to be swallowed by the liter; and countless others. All were variously graduated according to the gravity of the case and the subject's possibilities of physical resistance.

The judge was bound by laws and jurisprudence not to apply the torments outside the prescribed cases, and to apply them even then ut moderatae rationis temperamenta desiderant (Arcadio Carisio, in D., 48, 18, 10, 3) and more concretely citra membri diminutionem et mortis periculum (Innocent IV, bull Ad extirpanda, loc. cit.), and his was not a merely theoretical responsibility. For the case of abusive torture, as for that of excessive torments, adequate penalties were provided, which could reach as far as death, particularly when the illegal torture had resulted in the death of the tortured person. Nor was the omission of particular formalities established as guarantees of the accused's rights exempt from penalty.

As for the juridical effects, when a witness was put to torture, his resistance was generally enough to confirm and validate the deposition, even a suspect one, which he had made earlier, free from coercion; his contradicting himself had instead the effect, though with reservations and exceptions, of withdrawing credence from the previous deposition, which had already appeared vitiated. When by torture an accused or a condemned person was forced to provide information concerning his accomplices (something which in Roman law, and still in the ius commune down to about the 16th century, was not admitted except by way of exception in certain graver crimes, but later became normal and constituted an autonomous juridical figure, the question préalable of the French), then the inquisition could be opened against the persons accused of complicity and they too, if other indications concurred, could in turn be put to torture. But in the most common case, as has been said, this had as its passive subject the accused and as its immediate end the confession. If this was obtained, the confessing person was invited to ratify it in court, free and far from every torment, after an interval of time (usually, after 24 hours); the ratification, and it alone, decided the fate of the confessed criminal, because the confession extorted but confirmed was juridically as though spontaneous, while the confession extorted and not confirmed was juridically null, save for its value as an indication, usually sufficient to justify, like any other new indication that arose, the repetition of the torment. The proof could be repeated, as a rule, up to three times; if every time the accused confessed and then refused to ratify, and on the other hand his confessions furnished no elements by which he could be convicted of guilt with the sole aid of logic, nothing else remained but to set him at liberty for insufficiency of proof, imposing on him at most, as a suspect person, the furnishing of certain guarantees. The accused, finally, who maintained his innocence to the last, by resisting the torments won full acquittal. All the norms, however, on the juridical effects of torture were never as rigid as they may appear from a rapid outline: between the result of the torture and the content of the sentence there ran no relation of necessary, automatic determination, comparable to that which in another historical setting was characteristic of the trial founded on the judgments of God.

Such was the office of torture and its place in the trial according to theory. In practice things often went differently: practice precisely, with its incongruities, its injustices, its cruelties, kept alive those general problems, of logic and of morals together, which the wise theory had sought on its own account to suppress or to soothe.

To the Greeks and Romans a problem of torture was not unknown; but it did not pass beyond the domain of cold judicial logic. A moral evaluation of the institution is born only with Christianity, and is, in the constant thought of the patristic tradition, clearly negative: Tertullian declares the application of torments unworthy of a Christian judge (De corona, ch. 11; De idololatria, ch. 17), St. Augustine denounces the injustice of inflicting for an uncertain crime that which is a most certain punishment (De civitate Dei, 19, 6). Pope Nicholas I imposed upon the Bulgarian people an abolition of torture which, though on the margins of great history, is the first in the memory of man (Epistolae et decreta, 97, 86). But when the institution returned in full vigor throughout civilized Europe (13th century), the ideal condemnation sufficed only to check and to moderate the renewed practice, by then firmly embedded in a juridical system from which it could not have been detached without endangering the stability of the entire construction; the long silence of civilists and canonists on the problem of the foundations of torture is an index, not of disinterest, but of awareness of that danger, and is, in any case, tempered by the repeated, insistent counsels of moderation which they addressed to judges and generally to men of practice. A rethinking of the problem, and its broadening in a social and political sense, occurs only in the 16th century, favored by a new familiarity of a humanistic stamp with the ancient authors, pagan and Christian, and stimulated by the harshening of criminal justice under absolute governments and by the raging of witchcraft trials: against torture authoritative voices now arise, and the concept begins to make headway that it is not a necessary evil to which one must resign oneself, but a barbarism of which one could and should do without. Not much later the first books in favor of abolition begin to appear; they all have in common a vivid religious inspiration, whether they be 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 Joris Christianorum proscribenda, 1705); from the early 18th century they are beyond counting. To the idea, which these generous writers were able to make penetrate into consciences, but not yet into laws, the Enlightenment of the 18th century finally brings a contribution, no longer of thought but of action, which proves decisive: the proposals, the petitions, the polemics, the invectives of F. M. de Voltaire, of C. Beccaria, of P. Verri, of J. von Sonnenfels have as their effect little less than immediate the abolition of torture in some of the major States and the maturing in others of those conditions which end by leading everywhere to that same abolition between the last third of the 18th century and the first of the 19th.

The era of legal torture has thus ceased; but torture has not for this reason disappeared. We speak not of individual abuses, but of a general fact. Exceptional in Europe and opposed by written laws and by the common juridical conscience, there have recently gained a foothold in the judicial practice beyond the curtain and beyond the ocean those procedures which tend to extort confessions from the accused by crushing their nervous resistance, by means of so-called third-degree interrogations, or even by depriving them of their moral liberty, by means of the injection of drugs capable of temporarily suppressing full consciousness. In such procedures there revives, in the fullest sense of the word, the ancient mental torture, technically modernized, and unfortunately deprived of those guarantees with which the old jurists always wished it tempered, as the most atrocious among all the forms of torture.

Piero Fiorelli

MORAL ASPECT

The lawfulness or otherwise of torture can present itself under two aspects: that of the application of torture as a punishment; the other as a means of investigation.

There can be no doubt about the lawfulness of torture as an afflictive punishment, assuming the lawfulness of the death penalty and assuming the lawfulness of mutilation and flogging, punishments equally afflictive. As intimidation directed against an innocent person in order to extract a secret from him, it is doubly unlawful, both as an unjustified act of violence and as extortion of a secret (v.). The question of the lawfulness of applying torture as a means of judicial investigation, upon individuals already more or less gravely suspected, for the purpose of extracting their judicial confession, has received different solutions.

For some, assuming the judge's right to investigate in order to ascertain the truth of the facts, when, in determinate circumstances, the normal means have been exhausted, the common good can require that the accused be subjected even to coercive means, such as torture. What is at issue is the interest society has in establishing precisely the responsibility of a determinate individual, a right to proof. The individual's right to remain silent and to express himself freely is not denied, but it yields to the right society has to know who threatens the common good, to vindicate the violated juridical norm.

The disadvantage of failing to discover the perpetrator of a determinate crime would at times cause damages to society far greater than those that can come from the violation of liberty in demanding and requiring the self-disclosure of a determinate individual (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 in this current of thought, for torture to be lawful it must be contained within well-defined limits: a) there must already be indications against the subject, constituting a semiplena proof (extrajudicial confession, the deposition of a witness above every suspicion, etc.); b) it must concern a person who can be subjected to torture and who is not rendered immune to it either by particular circumstances of natural law or by prescription of positive law; c) every other milder means of investigation must have been tried; d) the torture must be neither absolutely nor relatively unbearable for the subject upon whom it is inflicted; e) a ratification or retraction of the extorted confession must be permitted in full tranquility (cf. St. Alphonsus M. de' Liguori, Th. mor., IV, cap. 3 a. 3, n. 202, II). Today, however, the current prevails that rests upon the safeguarding of the rights of the human person, thanks to which the guilty party has a right to inviolability in soul and body, and against this fundamental right motives of a social nature or of common good cannot avail. Moreover, to demand from the guilty party the confession of his misdeed seems to exceed what can be claimed from the common possibilities of human nature, and to trespass into a zone in which heroism is required. And heroism, in the vast majority of cases, can be counseled, not imposed. Further: the guilty party has a right to his reputation, even if only apparent and false. Reputation, in fact, is equated to an external good that is realized by the personal industry of each one. Over such an external good of his own, when it is real, the human being can claim the full and absolute right to the exclusion of any other. The right, then, to apparent reputation, if it cannot be deduced from man's own right, must be affirmed ex inconvenientibus that would follow from it, especially against the peace and tranquility that would be compromised were it obligatory and even lawful to manifest on every occasion the hidden defects of others.

Against this argument, which is without doubt the weakest, it must immediately be observed that the right to false fame is relative and limited: being founded on the common good, it could cease, precisely when the good of others required it. Other reasons carry their notable weight, especially today, when perfected methods of investigation with scientific expert examinations, etc., render any recourse to means, if nothing else so imperfect, far less useful. Public opinion, which carries its weight in the use of means to attain determinate social ends, is today clearly contrary to the use of torture. However, such a system cannot be said to be entirely and everywhere banished in practice in judicial investigations or in police systems. And it is doubly dangerous, because those guarantees that would legalize the application of torture are lacking. In any case, a truly civilized nation would today have horror of introducing it into its penal code.

There is discussion, instead, about the advisability of introducing other methods of investigation, even more injurious to freedom of confession, such as narco-analysis (v.), where the attack against the personality is even more insidious and total. In canonical procedure, after the CIC, the use of any coercion to extract the confession of the guilty party is no longer admitted, and it is indeed expressly stated that the guilty party is not bound to tell the truth when agitur de delicto ab ipso commissio (can. 1743 § 1; cf. also can. 1947).

Pietro Palazzini