There were some general limitations imposed on the application of torture, but they were hardly such as to prevent its abuse at the hands of cruel or unscrupulous judges. Antoninus Pius set an example, which modern jurists might well have imitated, when he directed that no one should be tortured after confession to implicate others;[1437] and a rescript of the same enlightened emperor fixes at fourteen the minimum limit of age liable to torture, except in cases of majestas, when, as we have seen, the law spared no one, for in the imperial jurisprudence the safety of the monarch overrode all other considerations.[1438] Women were spared during pregnancy.[1439] Moderation was enjoined upon the judges, who were to inflict only such torture as the occasion rendered necessary, and were not to proceed further at the will of the accuser.[1440] No one was to be tortured without the inscription of a formal accuser, who rendered himself liable to the lex talionis, unless there were violent suspicions to justify it;[1441] and Adrian reminded his magistrates that it should be used for the investigation of truth, and not for the infliction of punishment.[1442] Adrian further directed, in the same spirit, that the torture of slave witnesses should only be resorted to when the accused was so nearly convicted that it alone was required to confirm his guilt.[1443] Diocletian ordered that proceedings should never be commenced with torture, but that it might be employed when requisite to complete the proof, if other evidence afforded rational belief in the guilt of the accused.[1444]
What was the exact value set upon evidence procured by torture it would be difficult at this day to determine. We have seen above that Augustus pronounced it the best form of proof, but other legislators and jurists thought differently. Modestinus affirms that it is only to be believed when there is no other mode of ascertaining the truth.[1445] Adrian cautions his judges not to trust to the torture of a single slave, but to examine all cases by the light of reason and argument.[1446] According to Ulpian, the imperial constitutions provided that it was not always to be received nor always rejected; in his own opinion it was unsafe, dangerous, and deceptive, for some men were so resolute that they would bear the extremity of torment without yielding, while others were so timid that through fear they would at once inculpate the innocent.[1447] From the manner in which Cicero alternately praises and discredits it, we can safely assume that lawyers were in the habit of treating it, not on any general principle, but according as it might affect their client in any particular case; and Quintilian remarks that it was frequently objected to on the ground that under it one man’s constancy makes falsehood easy to him, while another’s weakness renders falsehood necessary.[1448] That these views were shared by the public would appear from the often quoted maxim of Publius Syrus—“Etiam innocentes cogit mentiri dolor”—and from Valerius Maximus, who devotes his chapter De Quæstionibus to three cases in which it was erroneously either trusted or distrusted. A slave of M. Agrius was accused of the murder of Alexander, a slave of C. Fannius. Agrius tortured him, and, on his confessing the crime, handed him over to Fannius, who put him to death. Shortly afterwards, the missing slave returned home. This same Alexander was made of sterner stuff, for when he was subsequently suspected of being privy to the murder of C. Flavius, a Roman knight, he was tortured six times and persistently denied his guilt, though he subsequently confessed it and was duly crucified.[1449] A somewhat similar case gave Apollonius of Tyana an opportunity of displaying his supernatural power. Meeting in Alexandria twelve convicts on their way to execution as robbers, he pronounced one of them to be innocent, and asked the executioners to reserve him to the last, and, moreover, delayed them by his conversation. After eight had been beheaded, a messenger came in hot haste to announce that Phanion, the one selected by Apollonius, was innocent, though he had accused himself to avoid the torture.[1450] A curious instance, moreover, of the little real weight attached to such evidence is furnished by the case of Fulvius Flaccus, in which the whole question turned upon the evidence of his slave Philip. This man was actually tortured eight times, and refused through it all to criminate his master, who was nevertheless condemned.[1451] The same conclusion is to be drawn from the story told by St. Jerome of a woman of Vercelli repeatedly tortured on an accusation of adultery, and finally condemned to death in spite of her constancy in asserting her innocence, the only evidence against her being that of her presumed accomplice, extorted under torment.[1452] Quintus Curtius probably reflects the popular feeling on the subject, in his pathetic narrative of the torture of Philotas on a charge of conspiracy against Alexander. After enduring in silence the extremity of hideous torment, he promised to confess if it were stopped, and when the torturers were removed he addressed his brother-in-law Craterus, who was conducting the investigation: “Tell me what you wish me to say.” Curtius adds that no one knew whether or not to believe his final confession, for torture is as apt to bring forth lies as truth.[1453]
From the instances given by Valerius Maximus, it may be inferred that there was no limit set upon the application of torture. The extent to which it might be carried appears to have rested with the discretion of the tribunals, for, with the exception of the general injunctions of moderation alluded to above, no instructions for its administration are to be found in the Roman laws which have been preserved to us, unless it be the rule that when several persons were accused as accomplices, the judges were directed to commence with the youngest and weakest.[1454]
Since the time of Sigonius, much antiquarian research has been directed to investigating the various forms of torture employed by the Romans. They illustrate no principles, however, and it is sufficient to enumerate the rack, the scourge, fire in its various forms, and hooks for tearing the flesh, as the modes generally authorized by law. The Christian historians, in their narratives of the persecutions to which their religion was exposed, give us a more extended idea of the resources of the Roman torture chamber. Thus Prudentius, in his description of the martyrdom of St. Vincent, alludes to a number of varieties, among which we recognize some that became widely used in after times, showing that little was left for modern ingenuity to invent.[1455]
I have dealt thus at length on the details of the Roman law of torture because, as will be seen hereafter, it was the basis of all modern legislation on the subject, and has left its impress on the far less humane administration of criminal justice in Europe almost to our own day. Yet at first it seemed destined to disappear with the downfall of the Roman power.
[CHAPTER III.]
THE BARBARIANS.
In turning from the nicely poised and elaborate provisions of the Imperial laws to the crude jurisprudence of the Barbarian hordes who gradually inherited the crumbling remains of the Empire of the West, we enter into social and political conditions so different that we are naturally led to expect a corresponding contrast in every detail of legislation. For the cringing suppliant of the audience chamber, abjectly prostrating himself before a monarch who combines in his own person every legislative and executive function, we have the freeman of the German forests, who sits in council with his chief, who frames the laws which both are bound to respect, and who pays to that chief only the amount of obedience which superior vigor and intellect may be able to enforce. The structure of such a society is fairly illustrated by the incident which Gregory of Tours selects to prove the kingly qualities of Clovis. During his conquest of Gaul, and before his conversion, his wild followers pillaged the churches with little ceremony. A bishop, whose cathedral had suffered largely, sent to the king to request that a certain vase of unusual size and beauty might be restored to him. Clovis could only promise that if the messenger would accompany him to Soissons, where the spoils were to be divided, and if the vase should chance to fall to his share, it should be restored. When the time came for allotting the plunder, he addressed his men, requesting as a special favor that the vase might be given to him before the division, but a sturdy soldier, brandishing his axe, dashed it against the coveted article, exclaiming, “Thou shalt take nothing but what the lot assigns to thee.” For a year, Clovis dissembled his resentment at this rebuff, but at length, when opportunity offered, he was prompt to gratify it. While reviewing and inspecting his troops, he took occasion to reproach bitterly the uncourtly Frank with the condition of his weapons, which he pronounced unserviceable. The battle-axe excited his especial displeasure. He threw it angrily to the ground, and as the owner stooped to pick it up, Clovis drove his own into the soldier’s head, with the remark, “It was thus you served the vase at Soissons.”[1456]
This personal independence of the freeman is one of the distinguishing characteristics of all the primitive Teutonic institutions. Corporal punishments for him were unknown to the laws. The principal resource for the repression of crime was by giving free scope to the vengeance of the injured party, and by providing fixed rates of composition by which he could be bought off. As the criminal could defend himself with the sword against the faida or feud of his adversary, or could compound for his guilt with money, the suggestion of torturing him to extort a confession would seem an absurd violation of all his rights. Crimes were regarded solely as injuries to individuals, and the idea that society at large was interested in their discovery, punishment, and prevention, was entirely too abstract to have any influence on the legislation of so barbarous an age.
Accordingly, the codes of the Feini, the Ripuarians, the Alamanni, the Angli and Werini, the Frisians, the Saxons, and the Lombards contain no allusion to the employment of torture under any circumstances; and such few directions for its use as occur in the laws of the Salien Franks, of the Burgundians, and of the Baioarians, do not conflict with the general principle.