The necessity of this constant repetition of the law is indicated by a rescript of Valentinian, in 369, which shows that freemen were not infrequently tortured in contravention of law; but that torture could legally be indiscriminately inflicted by any tribunal in cases of treason, and that in other accusations it could be authorized by the order of the emperor.[1400] This power was early assumed and frequently exercised. Though Claudius at the commencement of his reign had sworn that he would never subject a freeman to the question, yet he allowed Messalina and Narcissus to administer torture indiscriminately, not only to free citizens, but even to knights and patricians.[1401] So Domitian tortured a man of prætorian rank on a doubtful charge of intrigue with a vestal virgin,[1402] and various laws were promulgated by several emperors directing the employment of torture irrespective of rank, in some classes of accusations. Thus, in 217, Caracalla authorized it in cases of suspected poisoning by women.[1403] Constantine decreed that unnatural lusts should be punished by the severest torments, without regard to the station of the offender.[1404] Constantius persecuted in like manner soothsayers, sorcerers, magicians, diviners, and augurs, who were to be tortured for confession, and then to be put to death with every refinement of suffering.[1405] So, Justinian, under certain circumstances, ordered torture to be used on parties accused of adultery[1406]—a practice, however, which was already common in the fourth century, if we are to believe the story related by St. Jerome of a miracle occurring in a case of this nature.[1407] The power thus assumed by the monarch could evidently be limited only by his discretion in its exercise.
One important safeguard, however, existed, which, if properly maintained, must have greatly lessened the frequency of torture as applied to freemen. In bringing an accusation the accuser was obliged to inscribe himself formally, and was exposed to the lex talionis in case he failed to prove the justice of the charge.[1408] A rescript of Constantine, in 314, decrees that in cases of majestas, as the accused was liable to the severity of torture without limitation of rank, so the accuser and his informers were to be tortured when they were unable to make good their accusation.[1409] This enlightened legislation was preserved by Justinian, and must have greatly cooled the ardor of the pack of calumniators and informers, who, from the days of Sylla, had been encouraged and petted until they held in their hands the life of almost every citizen.
In all this it must be borne in mind that the freeman of the Roman law was a Roman citizen, and that, prior to the extension of citizenship generally to the subjects of the Empire, there was an enormous class deprived of the protection, such as it was, of the traditional exemption. Thus when, in Jerusalem, the Jews raised a tumult and accused St. Paul, without specifying his offence, the tribune forthwith ordered “that he should be examined by scourging, that he might know wherefore they cried so against him;” and when St. Paul proclaimed himself a Roman, the preparations for his torture were stopped forthwith, and he was examined by regular judicial process.[1410] The value of this privilege is fairly exemplified by the envying remark of the tribune, “With a great sum obtained I this freedom.”
All these laws relate to the extortion of confessions from the accused. In turning to the treatment of witnesses, we find that even with them torture was not confined to the servile condition. With slaves it was not simply a consequence of slavery, but a mode of confirming and rendering admissible the testimony of those whose character was not sufficiently known to give their evidence credibility without it. Thus a legist under Constantine states that gladiators and others of similar occupation cannot be allowed to bear witness without torture;[1411] and, in the same spirit, a novel of Justinian, in 539, directs that the rod shall be used to extract the truth from unknown persons who are suspected of bearing false witness or of being suborned.[1412]
It may, therefore, readily be imagined that when the evidence of slaves was required, it was necessarily accompanied by the application of torture. Indeed, Augustus declared that while it is not to be expressly desired in trifling matters, yet in weighty and capital cases the torture of slaves is the most efficacious mode of ascertaining the truth.[1413] When we consider the position occupied by slavery in the Roman world, the immense proportion of bondmen who carried on all manner of mechanical and industrial occupations for the benefit of their owners, and who, as scribes, teachers, stewards, and in other confidential positions, were privy to almost every transaction of their masters, we can readily see that scarce any suit could be decided without involving the testimony of slaves, and thus requiring the application of torture. It was not even, as among most modern nations, restricted to criminal cases. Some doubt, indeed, seems at one time to have existed as to its propriety in civil actions, but Antoninus Pius decided the question authoritatively in the affirmative, and this became a settled principle of Roman jurisprudence, even when the slaves belonged to masters who were not party to the case at issue.[1414]
There was but one limitation to the universal liability of slaves. They could not be tortured to extract testimony against their masters, whether in civil or criminal cases;[1415] though, if a slave had been purchased by a litigant to get his testimony out of court, the sale was pronounced void, the price was refunded, and the slave could then be tortured.[1416] This limitation arose from a careful regard for the safety of the master, and not from any feeling of humanity towards the slave. So great a respect, indeed, was paid to the relationship between the master and his slave that the principle was pushed to its fullest extent. Thus even an employer, who was not the owner of a slave, was protected against the testimony of the latter.[1417] When a slave was held in common by several owners, he could not be tortured in opposition to any of them, unless one were accused of murdering his partner.[1418] A slave could not be tortured in a prosecution against the father or mother of the owner, or even against the guardian, except in cases concerning the guardianship;[1419] though the slave of a husband could be tortured against the wife.[1420] Even the tie which bound the freedman to his patron was sufficient to preserve the former from being tortured against the latter;[1421] whence we may assume that, in other cases, manumission afforded no protection from the rack and scourge. This question, however, appears doubtful. The exemption of freedmen would seem to be proved by the rescript which provides that inconvenient testimony should not be got rid of by manumitting slaves so as to prevent their being subjected to torture;[1422] while, on the other hand, a decision of Diocletian directs that, in cases of alleged fraudulent wills, the slaves and even the freedmen of the heir could be tortured to ascertain the truth.[1423]
This policy of the law in protecting masters from the evidence of their tortured slaves varied at different periods. From an expression of Tacitus, it would seem not to have been part of the original jurisprudence of the Republic, but to have arisen from a special decree of the Senate. In the early days of the Empire, while the monarch still endeavored to veil his irresponsible power under the forms of law, and showed his reverence for ancient rights by evading them rather than by boldly subverting them, Tiberius, in prosecuting Libo and Silanus, caused their slaves to be transferred to the public prosecutor, and was thus able to gratify his vengeance legally by extorting the required evidence.[1424] Subsequent emperors were not reduced to these subterfuges, for the principle became established that in cases of majestas, even as the freeman was liable to torture, so his slaves could be tortured to convict him;[1425] and as if to show how utterly superfluous was the cunning of Tiberius, the respect towards the master in ordinary affairs was carried to that point that no slave could be tortured against a former owner with regard to matters which had occurred during his ownership.[1426] On the other hand, according to Ulpian, Trajan decided that when the confession of a guilty slave under torture implicated his master, the evidence could be used against the master, and this, again, was revoked by subsequent constitutions.[1427] Indeed, it became a settled principle of law to reject all incriminations of accomplices.
Having thus broken down the protection of the citizen against the evidence of his slaves in accusations of treason, it was not difficult to extend the liability to other special crimes. Accordingly we find that, in 197, Septimius Severus specified adultery, fraudulent assessment, and crimes against the state as cases in which the evidence of slaves against their masters was admissible.[1428] The provision respecting adultery was repeated by Caracalla in 214, and afterwards by Maximus,[1429] and the same rule was also held to be good in cases of incest.[1430] It is probable that this increasing tendency alarmed the citizens of Rome, and that they clamored for a restitution of their immunities, for, when Tacitus was elected emperor, in 275, he endeavored to propitiate public favor by proposing a law to forbid the testimony of slaves against their masters except in cases of majestas.[1431] No trace of such a law, however, is found in the imperial jurisprudence, and the collections of Justinian show that the previous regulations were in full force in the sixth century.
Yet it is probable that the progress of Christianity produced some effect in mitigating the severity of legal procedure and in shielding the unfortunate slave from the cruelties to which he was exposed. Under the Republic, while the authority of the paterfamilias was still unabridged, any one could offer his slaves to the torture when he desired to produce their evidence. In the earlier times, this was done by the owner himself in the presence of the family, and the testimony thus extorted was carefully taken down to be duly produced in court; but subsequently the proceeding was conducted by public officers—the quæstors and triumviri capitales.[1432] How great was the change effected is seen by the declaration of Diocletian, in 286, that masters were not permitted to bring forward their own slaves to be tortured for evidence in cases wherein they were personally interested.[1433] This would necessarily reduce the production of slave testimony, save in accusations of majestas and other excepted crimes, to cases in which the slaves of third parties were desired as witnesses; and even in these, the frequency of its employment must have been greatly reduced by the rule which bound the party calling for it to deposit in advance the price of the slave, as estimated by the owner, to remunerate the latter for his death, or for his diminished value if he were maimed or crippled for life.[1434] When the slave himself was arraigned upon a false accusation and tortured, an old law provided that the master should receive double the loss or damage sustained;[1435] and in 383, Valentinian the Younger went so far as to decree that those who accused slaves of capital crimes should inscribe themselves, as in the case of freemen, and should be subjected to the lex talionis if they failed to sustain the charge.[1436] This was an immense step towards equalizing the legal condition of the bondman and his master. It was apparently in advance of public opinion, for the law is not reproduced in the compilations of Justinian, and probably soon was disregarded.