1Ulpianus, On the Duties of Proconsul, Book VIII. It is customary for torture to be applied for the purpose of detecting crime. Let us see when, and to what extent, this should be done. A beginning ought not to be made by the actual infliction of the question, and the Divine Augustus decided that confidence should not unreservedly be placed in torture. 1This is also contained in a letter of the Divine Hadrian addressed to Sennius Sabinus. The terms of the Rescript are as follows: “Slaves are to be subjected to torture only when the accused is suspected, and proof is so far obtained by other evidence that the confession of the slaves alone seems to be lacking.” 2The Divine Hadrian also stated the same thing in a Rescript to Claudius Quartinus, and in this Rescript he decided that a beginning should be made with the person who was most suspected, and from whom the judge believed that the truth could most easily be ascertained. 3Those whom the accuser produces from his own house should not be tortured, for it is not easy to believe that a substitution has been made for one whom both parents consider their dear daughter; as is stated in a Rescript of the Divine Brothers addressed to Lucius Tiberianus. 4They also stated in a Rescript to Cornelius Proculus, that confidence should not be reposed in the torture of a single slave, but that the case should be investigated after the evidence has been given. 5The Divine Antoninus and the Divine Hadrian stated in a Rescript to Sennius Sabinus that where it was alleged that slaves, in company with their master, had carried away gold and silver, they should not be interrogated against their master, and not even anything which they may have said when not under torture will prejudice him. 6The Divine Brothers stated in a Rescript addressed to Lelianus Longinus that torture should not be applied to a slave belonging to the heirs, to obtain information with reference to the estate, even though it was suspected that the heir had obtained the ownership of the property by means of a fictitious sale. 7It has frequently been stated in Rescripts that a slave belonging to a municipality can be tortured when citizens are accused, because he is not their slave, but the slave of the community. The same thing should be stated with reference to the slaves of other corporations, for a slave is not considered to belong to several masters, but to the corporate body. 8When a slave is serving me in good faith, even though I do not have the ownership of him, it may be said that he can not be tortured to obtain evidence against me. The same rule applies to a freeman who is serving in good faith as a slave. 9It has also been established that a freedman cannot be tortured in a case where his patron is accused of a capital crime. 10Our Emperor, together with his Divine Father, stated in a Rescript that one brother could not be put to the question on account of another; and added as the reason that he should not be tortured to obtain evidence to implicate one against whom he could not be compelled to testify, if he was unwilling to do so. 11The Divine Trajan stated in a Rescript to Servius Quartus that the slave of a husband could be tortured to obtain evidence to convict his wife. 12He also stated in a Rescript to Mummius Lollianus that the slaves of a person who had been convicted could be tortured to obtain evidence against him, because they had ceased to be his. 13When a slave has been manumitted to prevent him from being put to torture, the Divine Pius stated in a Rescript that he could be tortured, provided this was not done to obtain evidence against his master. 14But where a slave belonged to another at the time when the investigation was begun, but afterwards became the property of the defendant, the Divine Brothers stated in a Rescript that he could, nevertheless, be tortured in the case in which his master was involved. 15If anyone should allege that a slave has been purchased at a sale which was void, he cannot be tortured before it has been established that the sale was not valid. This our Emperor, with his Divine Father, stated in a Rescript. 16Severus also stated in a Rescript to Spicius Antigonus: “As the torture of slaves should not be inflicted against their masters, and, if this has been done, as it cannot be used to influence the decision of the judge about to render it, still less should the statements of slaves against their masters be admitted.” 17The Divine Severus stated in a Rescript, that the confessions of accused persons should not be considered as proofs of crime, if no other evidence is offered to influence the sense of duty of the judge who is to decide the case. 18When anyone is ready to deposit the price of a slave, in order that he may be tortured to give evidence against his master, our Emperor, with his Divine Father, did not permit this to be done. 19Where slaves are tortured as accomplices in a crime, and they confess something in court which involves their master, the Emperor Trajan stated in a Rescript that the judge should render his decision as circumstances demand. It is shown by this Rescript that masters can be implicated by the confessions of their slaves, but more recent constitutions indicate that it is no longer in force. 20When tributes, which no one doubts are the sinews of the republic, are concerned, consideration of the danger which menaces with capital punishment a slave who is the accomplice of a fraud should cause his statements to be rejected. 21The magistrate in charge of the torture ought not directly to put the interrogation whether Lucius Titius committed the homicide, but he should ask in general terms who did it; for the other way rather seems to suggest an answer than to ask for one. This the Divine Trajan stated in a Rescript. 22The Divine Hadrian stated the following in a Rescript addressed to Calpurnius Celerianus: “Agricola, the slave of Pompeius Valens, may be interrogated concerning himself; but if, while undergoing torture, he should say anything more, it will be considered as proof against the defendant, and not the fault of him who asked the question.” 23It was declared by the Imperial Constitutions that while confidence should not always be reposed in torture, it ought not to be rejected as absolutely unworthy of it, as the evidence obtained is weak and dangerous, and inimical to the truth; for most persons, either through their power of endurance, or through the severity of the torment, so despise suffering that the truth can in no way be extorted from them. Others are so little able to suffer that they prefer to lie rather than to endure the question, and hence it happens that they make confessions of different kinds, and they not only implicate themselves, but others as well. 24Moreover, faith should not be placed in evidence obtained by the torture of enemies, because they lie very readily; still, under the pretext of enmity, its employment should not be rejected. 25After the case has been duly investigated, it can be decided whether confidence is to be placed in torture, or not. 26When anyone has betrayed robbers, it is stated by certain rescripts that no confidence should be placed in those who betrayed them. In others, however, which are more specific, it is provided that the evidence should not be entirely rejected, as is usual in similar cases; but, after proper consideration, it should be determined whether it is entitled to credit or not. For the majority of such persons, who fear that those who have been arrested may mention them, are accustomed to betray the latter for the purpose of themselves obtaining immunity, because accused persons who denounce those who have betrayed them are not readily believed; nor should immunity indiscriminately be granted to them as a reward for betrayals of this kind; nor should their allegations be believed, when they say that they have been accused by the others for having given them up, for this weak proof based on mendacity or calumny ought not to be considered against them. 27If anyone voluntarily confesses a crime, faith should not always be reposed in him; for sometimes one makes a confession through fear, or for some other reason. An Epistle of the Divine Brothers addressed to Voconius Saxa declares that a man who had made a confession against himself, and whose innocence was established, must be discharged after his conviction. The terms of the Epistle are as follows: “It is in compliance with the dictates of prudence and humanity, my dear Saxa, that, where a slave was suspected of having falsely confessed himself guilty of homicide, through fear of being restored to his master, you condemned him, still persevering in his false statement, with the intention of subjecting to torture his alleged accomplices, whom he had also accused falsely, in order that you might render his statements with reference to himself more certain. “Nor was your judicious intention in vain, as it was established by the torture that the persons referred to were not his accomplices, but that he had accused himself falsely. You can then set aside the judgment, and order him to be officially sold, under the condition that he never shall be returned to the power of his master, who, having received the price, will certainly be very willing to be rid of such a slave.” The Rescript indicates that, when a slave is condemned, if he should subsequently be discharged from liability, he will belong to the person whose property he was before his conviction. The Governor of the province, however, cannot restore anyone whom he has condemned to his original condition, as he cannot even revoke a decision in which money is involved. What then should be done? He should have recourse to the Emperor when anyone who at first appeared to be guilty, afterwards has his innocence established.

2Ulpianus, On the Edict, Book XXXIX. Slaves forming part of an estate cannot be put to the torture to obtain evidence against their masters, as long as it is uncertain to whom the property belongs.

3The Same, On the Edict, Book LVI. It was established by a Constitution of Our Emperor and the Divine Severus that a slave belonging to several owners cannot be subjected to torture against any of them.

4The Same, Disputations, Book III. In a case of incest (according to the opinion of Papinianus, which is also set forth in a Rescript), slaves are not liable to torture, because the Julian Law relating to Adultery does not apply.

5Marcianus, Institutes, Book II. Where anyone debauches a widow or a woman married to another, with whom he could not legally have contracted matrimony, he should be deported to an island, as the crime is a double one; incest, because, contrary to Divine Law, he has violated a woman related to him, and has added adultery or fornication to this offence. Finally, in a case of this kind, slaves can be tortured for the purpose of obtaining evidence against their masters.

6Papinianus, On Adultery, Book II. When a father or a husband brings an accusation of adultery, and a demand is made that the slaves of the party accused be put to the question, if an acquittal should result, after the case has been argued, and the witnesses produced, an estimate must be made of the value of the slaves who have died; but if a conviction should be obtained, the surviving slaves shall be confiscated. 1When the case is one involving a forged will, the slaves belonging to the estate can be tortured.

7Ulpianus, On Adultery, Book III. The judges must determine the measure of torture, and therefore it should be inflicted in such a way that the slave may be preserved either for his acquittal, or his punishment.

8Paulus, On Adultery, Book II. The Edict of the Divine Augustus, which he published during the Consulate of Vivius Avitus and Lucius Apronianus, is as follows: “I do not think that torture should be inflicted in every instance, and upon every person; but when capital and atrocious crimes cannot be detected and proved except by means of the torture of slaves, I hold that it is most effective for ascertaining the truth, and should be employed.” 1The slave who is to be free under a condition may be subjected to torture, because he is the slave of the heir, but he will still retain his hope of freedom.

9Marcianus, On Public Prosecutions, Book II. The Divine Pius stated in a Rescript that torture could be inflicted upon slaves in cases where money was involved, if the truth could not otherwise be ascertained, which is also provided by other rescripts. This, however, is true to the extent that this expedient should not be resorted to in a pecuniary case, but only where the truth cannot be ascertained unless by the employment of torture is it lawful to make use of it, as the Divine Severus stated in a Rescript. Hence it is permitted to put the slaves of others to the question if the circumstances justify it. 1In cases in which torture should not be inflicted upon slaves to obtain evidence against their masters they cannot even be interrogated, and still less can the statements of slaves against their masters be admitted. 2Torture should not be inflicted upon one who is deported to an island, as the Divine Pius stated in a Rescript. 3Nor should it be inflicted, in a pecuniary case, upon a slave who is to be free under a condition, unless the condition fails to be fulfilled.

10Arcadius, Charisius, On Witnesses. Torture should not be inflicted upon a minor under fourteen years of age, as the Divine Pius stated in a Rescript addressed to Cæcilius Jubentinus. 1All persons, however, without exception, shall be tortured in a case of high treason which has reference to princes, if their testimony is necessary, and circumstances demand it. 2It may be asked whether torture cannot be inflicted upon slaves belonging to the castrense peculium of a son in order to obtain evidence against his father. For it has been established that a father’s slave should not be tortured to obtain evidence against his son. I think that it may be properly held that the slaves of a son should not be tortured to obtain evidence against his father. 3Torture should not be applied to the extent that the accuser demands, but as reason and moderation may dictate. 4The accuser should not begin proceedings with evidence derived from the house of the defendant, when he calls as witnesses the freedmen or the slaves of the person whom he accuses. 5Frequently, also, in searching for the truth, even the tone of the voice itself, and the diligence of a keen examination afford assistance. For matters available for the discovery of truth emerge into the light from the language of the witness, and the composure or trepidation he displays, as well as from the reputation which each one enjoys in his own community. 6In questions where freedom is involved, it is not necessary to seek for the truth by the torture of those whose status is in dispute.

11Paulus, On the Duties of Proconsul, Book II. Even if a slave should be returned under a condition of the sale, he shall not be tortured to obtain evidence against his master.

12Ulpianus, On the Edict, Book LIV. When anyone, to avoid being tortured, alleges that he is free, the Divine Hadrian stated in a Rescript that he should not be put to the question before the case brought to decide his freedom has been tried.

13Modestinus, Rules, Book V. It is established that a slave can be tortured after he has been appraised, or the required stipulation has been entered into.

14The Same, Rules, Book VIII. A slave who is to be free under a condition, and who has been convicted of crime, will be entitled to the privilege of expecting his liberty, so that on account of the uncertainty of his status he will be punished as a freeman, and not as a slave.

15Callistratus, Judicial Inquiries, Book V. It is not necessary to inflict torture in the case of a freeman, where his testimony is not vacillating. 1In the case of a minor under fourteen years of age, the Divine Pius stated in a Rescript to Mæcilius that torture should not be inflicted to obtain evidence against another, especially as the accusation was by no means established by other evidence, since it did not result that the minor should be believed, even without the application of torture; for he says that age, which appears to protect persons against the harshness of torture, renders them also more suspected of falsehood. 2He who has given security to another claiming a slave should be considered as the master; and therefore such slaves cannot be put to torture to obtain evidence against him. The Divine Pius stated the following in a Rescript: “You must prove your case by other testimony, for torture should not be inflicted upon slaves, when the possessor of an estate has given security to a claimant, and in the meantime, is considered as the master.”

16Modestinus, On Punishments, Book III. The Divine Brothers stated in a Rescript that torture could be repeated. 1The Divine Pius stated in a Rescript that one who has made a confession implicating himself, shall not be tortured to obtain evidence against others.

17Papinianus, Opinions, Book XVI. Again, when a stranger brings an accusation, it has been established that slaves can be tortured to obtain evidence against their masters; a rule which the Divine Marcus, and afterwards the Emperor Maximus, followed in rendering their decisions. 1Slaves are not tortured against their master where a charge of fornication is made. 2In a case of fraudulent birth, if a person whom the other children assert is not their brother claims the estate, torture shall be applied to slaves belonging to the estate, for the reason that it is not employed against the other children as masters, but in order to determine the succession of the deceased owner. This agrees with what the Divine Hadrian stated in a Rescript, for when a man was accused of having murdered his partner, the Emperor decreed that a slave owned in common could be put to the question, because this appeared to be done in behalf of his master who had been killed. 3I gave it as my opinion that where a slave has been sentenced to the mines, he should not be tortured to obtain evidence against the person who had been his master, and that it made no difference if he had confessed that he had been the perpetrator of the crime.

18Paulus, Sentences, Book V. Where several persons are accused of the same offence, they should be heard in such a way as to begin with the one who is the most timid, or appears to be of tender age. 1An accused person who is overwhelmed with conclusive evidence can be tortured a second time; especially if he has hardened his mind and body against the torments. 2In a case in which nothing has been proved against the defendant, torture should not be applied without due consideration; but the accuser should be urged to confirm and substantiate what he has alleged. 3Witnesses should not be tortured for the purpose of convicting them of falsehood, or to ascertain the truth; unless they are alleged to have been present when the deed was committed. 4When a judge cannot otherwise obtain reliable information concerning a family, he can torture the slaves belonging to the estate. 5No confidence should be placed in a slave who voluntarily makes charges against his master, for the safety of masters must not be left to the discretion of their slaves. 6A slave cannot be interrogated to obtain evidence against his master, by whom he has been sold, and whom for some time he served as a slave, in remembrance of his former ownership. 7A slave should not be interrogated, even if his master offers to have him put to the torture. 8It is clear that every time an inquiry is made whether slaves should be interrogated to obtain evidence against their masters, it must first be ascertained that the latter are entitled to their ownership. 9A Governor who is to take cognizance of a criminal accusation must publicly appoint a day when he will hear the prisoners, for those who are to be defended should not be oppressed by the sudden accusation of crime; although, if at any time the defendant requests it, he should not be refused permission to defend himself, and on this account, the day of the hearing, whether it has been designated or not, may be postponed. 10Prisoners can not only be heard and convicted in court, but also elsewhere.

19Tryphoninus, Disputations, Book IV. He who is entitled to freedom under the terms of a trust cannot be tortured as a slave, unless he is accused by others who already have been subjected to torture.

20Paulus, Decisions, Book III. A husband, as the heir of his wife, brought suit against Surus for money which he alleged the deceased had deposited with him during his absence, and, in proof of it, he produced a single witness, the son of his freedman. He demanded before the Agent of the Treasury that a certain female slave should be put to torture. Surus denied that he had received the money, and stated that the testimony of one man should not be admitted; and that it was not customary to begin proceedings with torture, even though the female slave belonged to another. The Agent of the Treasury caused the female slave to be tortured. The Emperor decided, on appeal, that torture had been unlawfully inflicted, and that the testimony of one witness should not be believed, and therefore that the appeal had been properly taken.

21The Same, On the Punishments of Civilians. The Divine Hadrian stated in a Rescript that no one should be condemned because he was liable to be subjected to torture.

22The Same, Sentences, Book I. Those who have been arrested without having any accusers, can not be tortured, unless well-grounded suspicion is attached to them.