The return of torture
From extremely slender roots in the ninth century, the procedure of quaestio (inquest) remained infrequently used until the twelfth century in lay courts, although it seems to have become generally used in ecclesiastical courts during the same period. One reason for this was the greater ability of church courts to accept the doctrine of mala fama, or ‘bad reputation’, which allowed an ecclesiastical judge to hale a suspect before him without the presence or fact of an accuser. Church courts also developed the doctrine of the notoriety of crimes, which also permitted the ecclesiastical judge to begin proceedings without an accuser. Such notions as these began to establish juridical distinctions among freemen, and the ecclesiastical alignment of Frankish and later ideas of mala fama with the older Roman legal doctrine of infamia created substantial inroads into the idea of the inviolability of the defendant. They were preserved in the influential canonical collection of Pseudo-Isidore from the mid-ninth century on. In church courts, at least, the man of ill fame, the Anglo-Saxon tihtbysig or ungetreowe, the Scandinavian nithing, would have a hard time making a case or testifying in one, particularly in church courts. He could not be ordained, and he found that ecclesiastical courts could diminish or consume his good reputation with greater effect than lay courts could. Precociously developed between the ninth and twelfth centuries in ecclesiastical usage, the notion of infamy was also enhanced by the renewed study of Roman law after the eleventh century. Roman infamia had entailed severe social disabilities; so too did the later medieval doctrine, including opening up a kind of hierarchy of defendants in place of the homogeneous assumption of freeman-capacity.
Among legal changes between the ninth and the thirteenth centuries, the development of a doctrine of infamy, more elaborate than that of the Romans, was particularly useful and versatile. Against it a defendant was less protected than before by conventional assumptions and even by the judgement of God. In 1166 in the Assize of Clarendon, the English king Henry II observed that even if those of bad reputation, evilly defamed by the testimony of many legal men, survived the favourable outcome of the ordeal, they were nevertheless to flee the kingdom and not return. With the inquisitorial process, the doctrine of infamy contributed to the overturning of one legal universe by another.
The legal revolution took more than a century to be accomplished. It appears that its new procedure was generally in place before torture became a part of it. Two other aspects need to be considered first: the role of confession and the problem of proof.
For all their shortcomings, more clearly denounced throughout the twelfth century, the archaic procedures – oaths, ordeals and judicial combats – produced definitive decisions. To secure equally definitive decisions from testimony, inquest, witnesses, juries and magistrates seemed, at least until the mid-thirteenth century, far less certain and far more risky for the defendant. Thus in some cases inquest could be used as a procedure only when the defendant agreed to it, as, at first, could the petty (or trial) jury in England. In capital cases, moreover, these were new standards by which to apportion life and death, and a convincing system of proofs took a long time to develop. Some jurists argued that decisions based upon inquest should only lead to lesser punishments. For a long time, the technical skills needed to pursue an inquest were hard to acquire and apply. Just as infamous or notorious defendants appeared, so too did reliable and unreliable witnesses, and judges, prosecutors and juries knew it.
Paradoxically, even though the various forms of the inquest produced entirely new pictures of defendants, cases and witnesses, vastly more information than had ever surfaced in a routine trial, they also increased the fear of error. Confession, once only one of several means of corroborating an accusation under older procedures, now loomed larger than ever as a means of overcoming that uncertainty. One could be caught red-handed, by the right officials and witnesses, only at the moment of the crime. But one could confess at any time. And in the course of the twelfth century, sacramental confession and doctrines of voluntary penance developed rapidly and elaborately. With sacramental confession (made an annual obligation on all Christians at the Fourth Lateran Council of 1215) already developed as one of the two principal arenas of canon law (the other being the canon law trial itself), the role of confession became central to many areas of twelfth-century life. It was not long before it became central in serious criminal cases as well.
Faced with the prospect of open testimony challenged by the defendant, or with secret testimony doubted by the judge, and by a series of proofs that had yet to be graded in terms of reliability and trustworthiness, late twelfth- and thirteenth-century jurists and teachers of law raised the confession of the accused to the highest level of value. Beneath it ranged, between 1150 and 1250, a hierarchy of proofs. Particularly for capital crimes, this hierarchy of proofs was to provide the essential background to the use of torture.
In the developed thirteenth century doctrine of proofs, only two stood alone. One could condemn the accused on the testimony of two eyewitnesses or upon confession. If confession was not forthcoming, and if there was only one or no eyewitness, a series of indicia, circumstantial evidences, might be invoked to constitute a partial proof. But without full proof, no condemnation could be made, and no combination of partial proofs could constitute a full proof. Without a confession and without two eyewitnesses, then, there was only a graded combination of partial proofs available to the judge and hence no chance of conviction. To overcome the lack of a second eyewitness and the presence of many but never sufficient indicia, the courts had to return to the one element that made full conviction and punishment possible: confession. And to obtain confession, torture was once again invoked, but on very different grounds from those of ancient Roman law.
But this has been to get ahead of the story a little. These events covered more than a century, and that century saw other concerns emerge that also touched questions of legal procedure. First came the renewed study of Roman law, dating from the work of Irnerius at Bologna around 1100. At first, indeed for half a century, scholars worked simply at reconstructing and explaining the Corpus Iuris Civilis. Roman law was held to be still binding in parts of Italy and southern France, although most of its provisions had long since fallen into disuse. And learned jurists still considered it an expression of supreme legal reasoning, whether it was specifically binding in a particular locale or not. Indeed, in many early commentaries from the twelfth century, the relevant sections of the Digest and Code that dealt with torture were simply not commented upon and probably not taught. But as the twelfth century went on and the changes described just above took place, Roman law began to influence all the laws of Europe, not merely those in France and Italy. First, it influenced the law of the Church, as Roman law came to be an introduction to canon law; second, it influenced all centralizing legal authorities, whether they adopted it entirely or not, even in those lands in which, as in England, another general system of law would eventually prevail. The doctrines regarding torture in Roman law were there when Europeans needed them, but they did not force themselves upon legal reformers, nor was anyone obliged to begin torturing defendants simply because Roman law contained a number of provisions for doing so.
The earliest mentions of torture in late eleventh- and early twelfth-century sources are explicit: it is reserved for known criminals and the ‘lowest of men’, vilissimi homines: ‘Men living honestly who cannot be corrupted by grace, favour, or money, may be received as witnesses on the strength of their sworn oath alone. The lowest of men, however, those easily corrupted, may not be received [as witnesses] on their oath alone, but are to be subjected to tortures, that is, to the judgement of fire or of boiling water.’ In this passage from the Book of Tübingen, around 1100, the familiar ordeals are referred to as ‘torture’ and reserved for a specific class of witnesses. The same text states elsewhere: ‘A slave is not to be received as a witness, but is to be subjected to imprisonment or to torments, so that the truth may be made plain, just like thieves and robbers and others of the worst kind of malefactors.’ Other instances of this ordeal-torture are to be found in the laws of the Latin Kingdom of Jerusalem. As Fiorelli and others have pointed out, the conceptualization of the judicial ordeal seems