From the late Middle Ages and throughout the ancien régime, torture was an incident of the legal systems of all the great states of continental Europe.Read more at location 176
This law of torture developed in northern Italy in the thirteenth century within the Roman-canon inquisitorial tradition, and it spread through Europe in the movement that is called the reception of Roman law.Read more at location 180
By the sixteenth century a substantially similar law of torture was in force from the Kingdom of Sicily north to Scandinavia,Read more at location 181
We shall have a good deal to say in this book about the history both of punishment and of torture, but the two must not be confounded. When we speak of “judicial torture,” we are referring to the use of physical coercion by officers of the state in order to gather evidence for judicial proceedings.Read more at location 184
No punishment, no matter how gruesome, should be called torture.Read more at location 189
the creature of the so-called statutory system of proofs—the Roman-canon law of evidence.Read more at location 191
They have especially emphasized the forceful writing of publicists like Beccaria and Voltaire and the political wisdom of Enlightenment rulers like Frederick the Great and the emperor Joseph II.Read more at location 193
A principal thesis of this book is that the conventional account of the abolition of torture in the eighteenth century is wrong.Read more at location 194
In Chapter 3 it will be contended that the explanation for the disappearance of judicial torture is neither publicistic nor political, but juristic.Read more at location 195
two centuries preceding the abolition of torture, there occurred a revolution in the law of proof in Europe. The Roman-canon law remained formally in force, but with its power eroded away. The true explanation for the abolition of torture is that by the age of abolition torture was no longer needed.Read more at location 196
the court could convict and condemn an accused upon the testimony of two eyewitnessesRead more at location 202
if there were not two eyewitnesses, the court could convict and condemn the accused only upon the basis of his own confession.Read more at location 203
indicia, was not an adequate basis for conviction and condemnation, no matter how compelling.Read more at location 205
It does not matter, for example, that the suspect is seen running away from the murdered man’s house and that the bloody dagger and the stolen loot are found in his possession.Read more at location 206
the court cannot convict him without his confession, and that is where torture fitted into the system.Read more at location 208
examination under torture was permitted only when there was a so-called half proof against the suspect.Read more at location 210
Now what was the logic of creating a system of safeguards, followed by a system of coercion to overcome the safeguards?Read more at location 214
The coercion was carefully limited by rule in two important respects. First, there was the threshold requirement of half proof.Read more at location 217
Second, the use of torture was surrounded by various rules designed to enhance the reliability of the confession.Read more at location 220
torture was supposed to be employed in such a way that the accused would also confess to details of the crime—information which, in the words of the German Constitutio Criminalis Carolina of 1532, “no innocent person can know.”Read more at location 221
information admitted under torture be investigated and verified to the extent feasible.Read more at location 225
The Roman-canon law of proof was the successor to the ordeals, the nonrational proofs of Germanic antiquity. When the Fourth Lateran Council of 1215 abolished the ordeals, it destroyed an entire system of proof.7 The ordeals were means of provoking the judgment of God.Read more at location 230
The attempt to make God the fact finder for human disputes was being abandoned.Read more at location 235
It is almost impossible for us to imagine how difficult it must have been for the ordinary people of that age to accept that substitution.Read more at location 236
“You who are merely another mortal like me, who are you to sit in judgment upon me?”Read more at location 237
The problem that confronted the legal systems of the church and of the secular governments (initially in the North Italian city-states) was to make this fundamental change acceptable in the tradition-conscious and religiously devout societies of that day.Read more at location 242
elimination of judicial discretion, and that is why it forbids the judge the power to convict upon circumstantial evidence.Read more at location 245
Circumstantial evidence depends for its efficacy upon the subjective persuasion of the trier, the judge.Read more at location 246
the system of statutory proofs insists upon objective criteria of proof.8 The judge who administers it is an automaton.Read more at location 247
He condemns a criminal upon the testimony of two eyewitnesses, evidence which is in the famous phrase “as clear as the light of day.”Read more at location 248
Likewise, when the accused himself admits his guilt, there ought to be no doubt.Read more at location 250
The Roman-canon law of proof solved the problem of how to make the judgment of men palatable.Read more at location 252
The difficulty with this system is to our eyes quite obvious. The jurists who devised it had solved one problem by creating another.Read more at location 254
Their system could deal with most cases of overt crime but seldom with cases of covert crimeRead more at location 256
No society will long tolerate a legal system in which there is no prospect of convicting unrepentant persons who commit clandestine crimes.Read more at location 259
The two-eyewitness rule was hard to compromise or evade, but the confession rule invited “subterfuge.”Read more at location 260
There is considerable evidence of the use of torture in northern Italy already in the first half of the thirteenth century.Read more at location 263
Pope Innocent IV issued a decretal in 1252 confirming the use of torture in canon procedure, and in the works of Gandinus and other thirteenth-century writers the kernel of the subsequent law of torture was well developed.11 Actually, judicial torture may not have seemed to contemporaries to be very far from the ordeals.Read more at location 264
the ordeals may have helped suggest and legitimate the system of judicial torture that displaced them.Read more at location 268
The law of torture found a place for circumstantial evidence in the law of proof, but a subsidiary place.Read more at location 269
ius commune attempted to limit judicial discretion by promulgating predetermined, supposedly objective standards for evaluating the indicia and assigning them numerical values (quarter proofs, half proofs, and the like).Read more at location 271
The practice of coercing evidence from suspects did not need to be invented by medieval lawyers.Read more at location 274
The Digest preserved many references to the use of torture in imperial Roman law,Read more at location 276
there could be torture without the Roman-canon system,17 but the reverse was not true. The two-eyewitness rule left the Roman-canon system dependent upon the use of torture.Read more at location 280
What was wrong with the law of torture, after all? Superficially, it looks like a surprisingly good system, both efficient and just. The accused will not be tortured unless there is cogent incriminating evidence against him. When he is tortured, he will be asked for information, not just for a guilty plea, and the information he confesses will be examined and verified.Read more at location 283
innocent persons might yield to “the pain and torment and confess things they never did.”Read more at location 290
If the judge did engage in suggestive questioning, even accidentally, that could seldom be detected or prevented. If the accused knew something about the crime, but was still innocent of it, what he did know might be enough to give his confession verisimilitude.Read more at location 292
For certain crimes, especially heresy and witchcraft, there was seldom any objective evidence that might be used to verify the confession,Read more at location 294
These defects were well known. Today we associate their denunciation with Thomasius,21 Beccaria,22 and especially Voltaire.23 But those writers were in fact latecomers to a tradition as ancient as the system itself.Read more at location 296
Long before Voltaire, French writers of the sixteenth and seventeenth centuries are pointing to cases in which an innocent person confesses and is executed, after which the real culprit is discovered.Read more at location 302
The law of torture survived into the eighteenth century, not because its defects had been concealed, but rather in spite of their having been long revealed. European criminal procedure had no alternative;Read more at location 304
By contrast, the British Isles and some peripheral parts of the Continent remained free from judicial torture throughout the later Middle Ages,29 because the jury system rather than the Roman-canon law of proof replaced the ordeals. And, to this day, an English jury can convict an accused criminal on mere circumstantial evidence.Read more at location 307
torture was not allowed in cases of petty crime, delicta levia. The statutory proofs pertained only to cases of capital crime. Delicta levia were governed by what would today be called freie Beweiswürdigung or Vintime conviction, that is, the subjective persuasion of the judge.Read more at location 312
In the middle of the eighteenth century the leading states of Europe abolished judicial torture within the space of a generation.Read more at location 317
How did this abolition movement happen, how was it possible? In all the literature that discusses and celebrates the abolition of judicial torture, one meets the same account. We call it the fairy tale, and it goes like this: (1) The system of judicial torture persisted into the eighteenth century unabated. (2) There then arose a series of able publicists, most notably Beccaria and Voltaire, who revealed the incurable deficiencies of the jurisprudence of torture. (3) These writers shocked the conscience of Europe, and inspired the great monarchs of the Enlightenment to abolish torture. (4) Having abolished torture, the Europeans found themselves in a bit of a mess.Read more at location 321
First, it posits as the decisive causative element the moral outrage awakened by the likes of Beccaria and Voltaire.Read more at location 334
The eighteenth-century writers were advancing arguments against torture that had been known for centuries.Read more at location 335
Second, the fairy tale would have it that the abolition of torture preceded the abolition of the Roman-canon system of proof, in some states by nearly a century.Read more at location 338
The thesis of this book is that the Roman-canon law of proof lost its force not in the nineteenth century but in the seventeenth. A new system of proof, which was in fact free judicial evaluation of the evidence although not described as such, was developedRead more at location 345
That is to say, in just those cases where it had previously been necessary to use torture, it now became possible to punish the accused without meeting the evidentiary standards that had led to torture.Read more at location 351
Concealed under various misleading labels, a system of free judicial evaluation of the evidence achieved subsidiary validity.Read more at location 353
administrationRead more at location 358
