Torture and the Law of Proof

Europe and England in the Ancien Régime

John H. Langbein

• Publisher: University of Chicago Press
• Year: 2012
• ISBN:
  9780226922614
• Topic: Droit
• Subtopic: Théorie et pratique du droit

In Torture and the Law of Proof John H. Langbein explores the world of the thumbscrew and the rack, engines of torture authorized for investigating crime in European legal systems from medieval times until well into the eighteenth century. Drawing on juristic literature and legal records, Langbein's book, first published in 1977, remains the definitive account of how European legal systems became dependent on the use of torture in their routine criminal procedures, and how they eventually worked themselves free of it.The book has recently taken on an eerie relevance as a consequence of controversial American and British interrogation practices in the Iraq and Afghanistan wars. In a new introduction, Langbein contrasts the "new" law of torture with the older European law and offers some pointed lessons about the difficulty of reconciling coercion with accurate investigation. Embellished with fascinating illustrations of torture devices taken from an eighteenth-century criminal code, this crisply written account will engage all those interested in torture's remarkable grip on European legal history.

1 Europe: Judicial Torture

1 Torture and the Law of Proof

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. Torture was part of the ordinary criminal procedure, regularly employed to investigate and prosecute routine crime before the ordinary courts. The system was one of judicial torture.

There was in fact a jurisprudence of torture, with its own rules, treatises, and learned doctors of law. 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. By the sixteenth century a substantially similar law of torture was in force from the Kingdom of Sicily north to Scandinavia, from Iberia across France and the German Empire to the Slavic East. Well into the eighteenth century the law of torture was still current everywhere, and it survived into the nineteenth century in some corners of central Europe.¹

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. The law of torture regulated this form of judicial investigation. In matters of state, torture was also used to extract information in circumstances not directly related to judicial proceedings. Torture has to be kept separate² from the various painful modes of punishment used as sanctions against persons already convicted and condemned. No punishment, no matter how gruesome, should be called torture.³

It is universally acknowledged that judicial torture as it existed in the national legal systems of western Europe in early modern times was the creature of the so-called statutory system of proofs—the Roman-canon law of evidence. But historians have generally pointed to factors other than the law of proof as having brought about the abolition of torture. 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.

A principal thesis of this book is that the conventional account of the abolition of torture in the eighteenth century is wrong. In Chapter 3 it will be contended that the explanation for the disappearance of judicial torture is neither publicistic nor political, but juristic. In the 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. The system of proof which had required the use of torture was dead.

The Jurisprudence of Torture

The Roman-canon law of proof governed judicial procedure in cases of serious crime, cases where blood sanctions (death or severe physical maiming) could be imposed. In brief, there were three fundamental rules.

First, the court could convict and condemn an accused upon the testimony of two eyewitnesses to the gravamen of the crime.

Second, if there were not two eyewitnesses, the court could convict and condemn the accused only upon the basis of his own confession.

Third, circumstantial evidence, so-called indicia, was not an adequate basis for conviction and condemnation, no matter how compelling.⁴ 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. The court cannot convict him of the crime.

At least, the court cannot convict him without his confession, and that is where torture fitted into the system. In certain cases where there was neither the voluntary confession nor the testimony of the two eyewitnesses, the court could order that the suspect be examined about the crime under torture in order to secure his confession.

However, examination under torture was permitted only when there was a so-called half proof against the suspect. That meant either (1) one eyewitness, or (2) circumstantial evidence of sufficient gravity, according to a fairly elaborate tariff of gravity worked out by the later jurists. So, in the example where the suspect is caught with the dagger and the loot, each of those indicia would be a quarter proof. Together they cumulate to a half proof, and he could therefore be dispatched to a session in the local torture chamber.

Now what was the logic of creating a system of safeguards, followed by a system of coercion to overcome the safeguards? Manifestly, under sufficient coercion nearly anyone can be made to confess to anything. To the extent that the explanation is to be found in logic, it is that the system did not allow indiscriminate coercion. The coercion was carefully limited by rule in two important respects.

First, there was the threshold requirement of half proof. It amounted to what Anglo-American lawyers would call a rule of probable cause. It was designed to assure that only those persons highly likely to be guilty would be examined under torture.

Second, the use of torture was surrounded by various rules designed to enhance the reliability of the confession. Torture was not supposed to be used to secure what Anglo-American lawyers call a guilty plea, that is, an abject confession of guilt. Rather, 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.”⁵

To this end the Carolina forbids so-called suggestive questioning, in which the examiner supplies the accused with the details he wishes to hear from him. Further, the Carolina directs that the information admitted under torture be investigated and verified to the extent feasible.⁶ If the accused confesses to the slaying, he is supposed to be asked where he put the dagger. If he says he buried it under the old oak tree, the examining magistrate is supposed to send someone out to dig it up. (The rules regulating the use of judicial torture are set forth in greater detail in Note I at the end of this chapter.)

The Origins of Judicial Torture

This curious system of proof developed in the thirteenth century, although it has some roots in the twelfth century. 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. God revealed the innocence of an accused whose hand withstood infection from the hot iron; God pronounced the guilt of one who floated when subjected to the water ordeal.

The abolition of this system meant not only a fundamental change in the rules of proof, but a profound change in thinking about the nature of government and law. The attempt to make God the fact finder for human disputes was being abandoned. Henceforth, humans were going to replace God in deciding guilt or innocence, humans called judges. 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. The question that springs to the lips is: “You who are merely another mortal like me, who are you to sit in judgment upon me?”

Over many later centuries Western political theory developed its answer to that question. “I, the judge, sit in judgment upon you because I have the power to do so. I derive my power from the state, which selects, employs, and controls me.” And the state now claims to legitimate its power by purporting to derive it not from God but from the consent of the governed. In the thirteenth century, however, the modern theoretical solution lay very far in the future. 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. How could men be persuaded to accept the judgment of professional judges today, when only yesterday the decision was being remitted to God?

The system of statutory proofs was the answer. Its overwhelming emphasis is upon the elimination of judicial discretion, and that is why it forbids the judge the power to convict upon circumstantial evidence. Circumstantial evidence depends for its efficacy upon the subjective persuasion of the trier, the judge. He has to draw an inference of guilt from indirect evidence. By contrast, the system of statutory proofs insists upon objective criteria of proof.⁸ The judge who administers it is an automaton. He condemns a criminal upon the testimony of two eyewitnesses, evidence which is in the famous phrase “as clear as the light of day.” There should be no doubt about guilt in such a case. Likewise, when the accused himself admits his guilt, there ought to be no doubt. (Even under the former system of proof, confession constituted waiver. If the culprit admitted his guilt, the authorities were not going to waste their time and God’s by asking for a confirmation under ordeal.)

The Roman-canon law of proof solved the problem of how to make the judgment of men palatable. That judgment was to rest on certainty. It was to rest upon standards of proof so high that no one would be concerned that God was no longer being asked to resolve the doubts. There could be no doubts.⁹ The difficulty with this system is to our eyes quite obvious. The jurists who devised it had solved one problem by creating another. They had constructed a system of proof that could handle the easy cases but not the hard ones. Their system could deal with most cases of overt crime but seldom with cases of covert crime—cases where there were no eyewitnesses. If that sounds completely absurd, do bear in mind that even today many cases are easy—crimes committed in anger or in haste, and either witnessed or voluntarily confessed in remorse.

Nevertheless, the Roman-canon law of proof was unworkable standing alone. No society will long tolerate a legal system in which there is no prospect of convicting unrepentant persons who commit clandestine crimes. Something had to be done to extend the system to those cases. The two-eyewitness rule was hard to compromise or evade, but the confession rule invited “subterfuge.”¹⁰ To go from accepting a voluntary confession to coercing a confession from someone against whom there was already strong suspicion was a relatively small step, indeed, one which was probably taken almost from the inception of the system. There is considerable evidence of the use of torture in northern Italy already in the first half of the thirteenth century. 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. Both were physically discomforting modes of procedure ordered by the court upon a preliminary showing of cogent incriminating evidence, usually circumstantial evidence. In this sense, the ordeals may have helped suggest and legitimate the system of judicial torture that displaced them.¹²

The law of torture found a place for circumstantial evidence in the law of proof, but a subsidiary place. Circumstantial evidence was not consulted directly on the ultimate question—guilt or innocence. It was technically relevant only to an issue of interlocutory procedure—whether or not to examine the accused under torture. Even there the ius commu...