Aquinas on Torture
By Jordan Bishop
New Blackfriars, Volume 87, Issue 1009 (2006)
Introduction: Thomas Aquinas was twenty-seven years old when Pope Innocent IV published the bull Ad extirpanda (May 15, 1252), a code for the conduct of the Inquisition in Lombardy, Romagna and the Marches. The document is most famous, today, for the “Law 25”(§ 26), which reads as follows:
It is obvious from the text that what Pope Innocent is doing here is to allow the Inquisition in Northern Italy to adopt the practices that had, by 1252, become accepted practice in secular tribunals, and were to remain, in most of Europe, for centuries. Perhaps the ne plus ultra of such practice can be found in Passerinus, an Italian jurist who published in 1677:
In the event that witnesses who are clerics are to be tortured, they must not be tortured under the supervision of a lay judge, but under that of an ecclesiastical judge.
We are dealing here with judicial torture, which came into practice after the rediscovery of Roman law in the 11th and 12th centuries. It should be noted that this involved not only accused persons, but witnesses, and in particular witnesses whose social status was such that their testimony would not be accepted unless confirmed under torture: slaves, gladiators, actors and others of like status. This appears extremely bizarre to the modern readers, and it is bizarre. One should recall that the rules of evidence at the time were extremely restrictive. Passerinus, writing as late as the seventeenth century, provides an example: “An indicium is an act that represents a preamble, or something subsequent to the criminal act, or something extremely close to such an act; for example, to find a naked man in the same bed with a naked woman is a proximate indicium of fornication.” This is obviously, as circumstantial evidence, much more serious than the “mere suspicion of terrorist links” that seems in our own time to suffice. A conviction could not be obtained on the basis of an indicium, but it was sufficient to subject the suspect to torture to obtain a confession.