In formal litigation, the defeated suitor paid whatever damages his adversary’s slaves might have undergone at the hands of the professional torturer, who, as an expert in such matters, was empowered to assess the amount of depreciation that they had sustained. It affords a curious commentary on the high estimation in which such testimony was held to observe that, when a man’s slaves had testified against him on the rack, they were not protected from his subsequent vengeance, which might be exercised upon them without restriction.
As the laws of Greece passed away, leaving few traces on the institutions of other races, save on those of Rome, it will suffice to add that the principal modes in which torture was sanctioned by them were the wheel, the ladder or rack, the comb with sharp teeth, the low vault, in which the unfortunate patient was thrust and bent double, the burning tiles, the heavy hogskin whip, and the injection of vinegar into the nostrils.[1384]
In the earlier days of Rome, the general principles governing the administration of torture were the same as in Greece. Under the Republic, the free citizen was not liable to it, and the evidence of slaves was not received without it. With the progress of despotism, however, the safeguards which surrounded the freeman were broken down, and autocratic emperors had little scruple in sending their subjects to the rack.
Even as early as the second Triumvirate, a prætor named Q. Gallius, in saluting Octavius, chanced to have a double tablet under his toga. To the timid imagination of the future emperor, the angles of the tablet, outlined under the garment, presented the semblance of a sword, and he fancied Gallius to be the instrument of a conspiracy against his life. Dissembling his fears for the moment, he soon caused the unlucky prætor to be seized while presiding at his own tribunal, and, after torturing him like a slave without extracting a confession, put him to death.[1385]
The incident was ominous of the future, when all the powers of the state were concentrated in the august person of the emperor. He was the representative and embodiment of the limitless sovereignty of the people, whose irresponsible authority was transferred to him. The rules and formularies which had regulated the exercise of power, so long as it belonged to the people, were feeble barriers to the passions and fears of Cæsarism. Accordingly, a principle soon became engrafted in Roman jurisprudence that, in all cases of crimen majestatis, or high treason, the free citizen could be tortured. In striking at the ruler he had forfeited all rights, and the safety of the state, as embodied in the emperor, was to be preserved at every sacrifice.
The emperors were not long in discovering and exercising their power. When the plot of Sejanus was discovered, the historian relates that Tiberius abandoned himself so entirely to the task of examining by torture the suspected accomplices of the conspiracy, that when an old Rhodian friend, who had come to visit him on a special invitation, was announced to him, the preoccupied tyrant absently ordered him to be placed on the rack, and on discovering the blunder had him quietly put to death, to silence all complaints. The shuddering inhabitants pointed out a spot in Capri where he indulged in these terrible pursuits, and where the miserable victims of his wrath were cast into the sea before his eyes, after having exhausted his ingenuity in exquisite torments.[1386] When the master of the world took this fearful delight in human agony, it may readily be imagined that law and custom offered little protection to the defenceless subject, and Tiberius was not the only one who relished these inhuman pleasures. The half-insane Caligula found that the torture of criminals by the side of his dinner-table lent a keener zest to his revels, and even the timid and the beastly Claudius made it a point to be present on such occasions.[1387]
Under the stimulus of such hideous appetites, capricious and irresponsible cruelty was able to give a wide extension to the law of treason. If victims were wanted to gratify the whims of the monarch or the hate of his creatures, it was easy to find an offender or to make a crime. Under Tiberius, a citizen removed the head from a statue of Augustus, intending to replace it with another. Interrogated before the Senate, he prevaricated, and was promptly put to the torture. Encouraged by this, the most fanciful interpretation was given to violations of the respect assumed to be due to the late emperor. To undress one’s self or to beat a slave near his image; to carry into a latrine or a house of ill fame a coin or a ring impressed with his sacred features; to criticize any act or word of his became a treasonable offence; and finally an unlucky wight was actually put to death for allowing the slaves on his farm to pay him honors on the anniversary which had been sacred to Augustus.[1388]
So, when it suited the waning strength of paganism to wreak its vengeance for anticipated defeat upon the rising energy of Christianity, it was easy to include the new religion in the convenient charge of treason, and to expose its votaries to all the horrors of ingenious cruelty. If Nero desired to divert from himself the odium of the conflagration of Rome, he could turn upon the Christians, and by well-directed tortures obtain confessions involving the whole sect, thus giving to the populace the diversion of a persecution on a scale until then unknown, besides providing for himself the new sensation of the human torches whose frightful agonies illuminated his unearthly orgies.[1389] Diocletian even formally promulgated in an edict the rule that all professors of the hated religion should be deprived of the privileges of birth and station, and be subject to the application of torture.[1390] The indiscriminate cruelty to which the Christians were thus exposed without defence, at the hands of those inflamed against them by all evil passions, may, perhaps, have been exaggerated by the ecclesiastical historians, but that frightful excesses were perpetrated under sanction of law cannot be doubted by any one who has traced, even in comparatively recent times and among Christian nations, the progress of political and religious persecution.[1391]
The torture of freemen accused of crimes against the state or the sacred person of the emperor thus became an admitted principle of Roman law. In his account of the conspiracy of Piso, under Nero, Tacitus alludes to it as a matter of course, and in describing the unexampled endurance of Epicharis, a freedwoman, who underwent the most fearful torments without compromising those who possessed little claim upon her forbearance, the annalist indignantly compares her fortitude with the cowardice of noble Romans, who betrayed their nearest relatives and dearest friends at the mere sight of the torture chamber.[1392]
Under these limits, the freeman’s privilege of exemption was carefully guarded, at least in theory. A slave while claiming freedom, or a man claimed as a slave, could not be exposed to torture;[1393] and even if a slave, when about to be tortured, endeavored to escape by asserting his freedom, it was necessary to prove his servile condition before proceeding with the legal torments.[1394] In practice, however, these privileges were continually infringed, and numerous edicts of the emperors were directed to repressing the abuses which constantly occurred. Thus we find Diocletian forbidding the application of torture to soldiers or their children under accusation, unless they had been dismissed the service ignominiously.[1395] The same emperor published anew a rescript of Marcus Aurelius declaring the exemption of patricians and of the higher imperial officers, with their legitimate descendants to the fourth generation;[1396] and also a dictum of Ulpian asserting the same privilege in favor of decurions, or local town councillors, and their children.[1397] In 376, Valentinian was obliged to renew the declaration that decurions were only liable in cases of majestas, and in 399 Arcadius and Honorius found it necessary to declare explicitly that the privilege was personal and not official, and that it remained to them after laying down the decurionate.[1398] Theodosius the Great, in 385, especially directed that priests should not be subjected to torture in giving testimony,[1399] the significance of which is shown by the fact that no slave could be admitted to holy orders.