Tamar Herzog

"Contextualizing torture" seems like a terrible exercise to undertake. However, as a historian of 17^th and 18^th century, I am compelled to say something about the different role torture had in early modern societies, when compared to the present ones. Though most of my knowledge comes from studying the Spanish world, many of my conclusions could be applied to other areas of continental Europe, in which the revived Roman Law system (Ius Commune) prevailed.

1. Torture was a legal practice and it was carefully delimited by law. There were specific rules as to who could be tortured, when, by whom, for how long and applying which method. Furthermore, there were strict indications as to the probatory value of the information received during a torture session, and the ability to use it against different people in different circumstances.

1. Torture was used in penal proceedings (including inquisitorial ones, but not only restricted to them) in many parts of continental Europe, Spain and its colonies included. As far as I know, and this is definitely true in the Spanish case, the practice of torture by the penal courts was very similar, if not identical, to its practice by the inquisition, as far as rules, methods and frequency were concerned.

1. The justification for using torture had to do with the perception that (at least the Spanish) early modern society had of crime, criminals and guilt. According to it, there was no clear distinction -although one was gradually emerging- between "sin" and "crime." Those committing an offense, therefore, were morally (and not only legally) wrong, and had to, first and foremost, repent their ways, before they could be readmitted to society. Since repent was impossible without acknowledging the crime, obtaining a confession was crucial. As a result, though confessions were considered the ultimate proof -very much their importance today-, they had also a fundamental role within a system that, at least theoretically, required adherence (that is, confession and acknowledgement of the wrong doing), before it could punish. Thus, if penance was the (only) way to re-enter society, than penance required conversion, and conversion implied admission of guilt. It therefore made sense that, according to this early modern legal system, torture could only be applied in order to obtain this admission of guilt, and for no other reason what so ever.

1. This reasoning actually justified torture as a practice favoring, first and foremost, the salvation of the victim, and not the protection of the "public good." Thus, the confession was not meant to defend society, but, instead, it was important only in so far as it allowed the criminal to be re-admitted to society, and the church, in the case of the inquisition. Thus, judges practicing torture explained to the victims, that they were doing so for their own good. Warning them to tell the truth, and explaining them that finding out the truth was their sole motivation, they also discharged their conscience in cases in which the torture resulted in death or lesion, and claimed that, instead, the victims were responsible for their own misery. In all the cases I consulted, the judicial warning was given four times. The first one outside the torture room, the second on the way to it, the third when entering it, and the forth just before the torture began.

1. Torture was used first and foremost in order to obtain a confession. It was applied to people who were suspected of wrongdoing, if certain "indications" -which were legally defined and measured- existed against them. According to medieval Spanish legislation (the Siete Partidas), which was still followed during the early modern period, these indications could include, for example, the testimony of a single witness (in order to convict, one needed at least two witnesses), or a fama fama, that is, a bad reputation, which in itself was a type of proof regulated by law (not all bad reputation mounted to a legally recognized mala fama). Within the thinking of this legal system, people who arose suspicion were also guilty of a certain offense. It reasoned that people were not only responsible for their acts, but also for their reputation (fama), which was the image that other people had of them. Thus, even if they were not guilty of the crime they were suspected of, those who arose suspicion were guilty, at least, of not being able to promote a good image of themselves, and not being able to fully integrate in "society." As such, they were just as prone to be tortured, confess their crime and be re-admitted to society, as all other "criminals."

1. The idea of personal redemption and social cohesion, as the principal motives behind the practice of torture, also justified the prohibition of torturing a family member in order to have him testify against another family member, up to the 4^th degree and including the "political family," obtained through marriage. Though this prohibition was not always practiced (I did find a few cases in which it was ignored), its inclusion in the regulations strengthened the idea of torture as a means of insertion, rather than a simple means of proof.

1. It is harder to explain why torture was also applied at times against witnesses, and not only suspects. The documents I consulted usually explained, that witnesses who did not come forward and shared their knowledge with the rest of society (judges included), were also guilty of an offense, since their behavior was detrimental to the corporate nature of society, of which all members formed part, and in which coordination (and integration) were required. In the same manner, witnesses who lied, knowing the truth to be different, were responsible for both a moral and a social crime. As a result, witnesses -whether resorting to silence or to a lie- needed to confess their wrongdoing and repent it, as all other "criminals" did.

1. Torture sessions could only be ordered by judges. They were carried out by special professionals, in the presence of the investigating judge and a public notary, who officially recorded the proceedings. The type of torture, as I mentioned before, was regulated in the legislation, and by the early modern period, it mainly included the "torture by ropes" (rortura de cordeles), in which a rope, tied to the legs and arms of the almost naked victim, would be gradually tightened. After each tightening, the victim would be asked to tell the truth, before a further tightening took place. Each person would be tortured separately, as there was a strict prohibition of group torture, one which, as far as I can tell from my sample, was always followed. As the session progressed, the notary registered on paper everything that was happening: the physical location, the time, the exchange of words between the different people present, the method applied, and also the words of the victim, including his cries of pain ("ay, ay, ay," "Santa María, Jesús)." As a result, Spanish penal proceedings in which torture was used, include a terrible -for very vivid- description of torture sessions. In fact, legalism was so predominant, that I found several cases in which a torture session, carried out with out the presence of a curator (in the case of minors) or a defending officer (in the case of Indians), was annulled and later repeated, so that to guarantee that it was legal. On these occasions, the judges insisted, that they were more worried about defending the rights of the victim -which included the presence of a legal expert- than they were about making sure that the confession obtained could be used in the legal proceedings. Furthermore, within the Ius Commune system as practiced in Spain and Spanish America, proofs obtained illegally were not necessarily invalidated, as they would be in many modern legal systems.

1. After the torture session was over, the victim had to affirm the veracity of the declarations made under torture. If he did, the declarations became part of the proofs in the penal (or inquisitorial) proceedings against him or against third parties (in cases of witnesses). If he did not, explaining that what ever was said was false, and could only be attributed to his fear or pain, absolution followed (if he was the accused), or the testimony was stricken out (if he was a witness). This system, of course, made sense from the moment in which torture was understood as a mechanism whose sole goal was to produce repent and confession. Thus, the authorities had to verify that such was the case, and, on the contrary, ignore those confessions that actually did not correspond to a true "conversion of the spirit," only affirmed by an a-posteriori recognition of guilt. Whether people confirmed their confession for fear of being tortured again, or because they truly recognized their guilt, is impossible to know. However, in almost all of the cases I analyzed during my research, people in fact re-affirmed the version given during the torture, and confessed their crimes, or their knowledge (when witnesses) after the torture was over. Those who remained silent during the torture, were indeed set free.

1. The Spanish system also made provisions for the punishment of those practicing illegal torture, without following the legal instructions in this respect, especially if the torture resulted in death or lesion. Adopting an "eye to eye philosophy," common in Spanish medieval legislation, and at least theoretically still present during the early modern period, it determined that those people would receive the same treatment they themselves gave the victims.

1. Beyond the legal arrangements, at any rate, it was clear that the practice of torture was often influenced by social and economic considerations. Legally, for example, only noblemen, minors (younger than 14 years of age), pregnant women and professionals (especially lawyers!), were immuned from being tortured. However, in practice, people tortured almost always belonged to the lower social strata and, in the Latin American case, to the non-Spanish groups of population. As a result, though a wide range of people could theoretically be tortured, many of them were, in practice, fairly immuned from torture. This immunity was more evident in criminal cases, than it was in inquisitorial proceedings, in which even people of high standing could -and if fact often were- tortured. Torture also varied according to the offense. There was a greater tendency to torture suspects and witnesses of heresy (the inquisition), and of rural crimes, especially animal theft (abigateo) and road banditry, than any other criminals and witnesses. On the one hand, these cases, it seemed, were harder to control, detect and prove, and they therefore required the application of special investigating and confession-production techniques. On the other, heresy and rural crimes also marked the external boundaries of the Spanish society, which understood itself to be both Christian and urban. People who were engaged in these crimes, therefore, were though of as liminal, and their insertion within the community -doubtful in itself- became a priority, and was practiced as an important mission, both symbolically and practically. The practice of torture, however, also depended on the time period. In the case of Quito, which I know best, there were specific years in which it was more common than in others and, as far as I could tell, frequency depended on elite perception of existing menaces to the social order. The more it trusted that order prevailed, the less it tended to practice torture, and vice versa. Though the identification of the relevant "elite" was hard at times, and its membership changed continuously and according to the case in question, it was nevertheless clear that a close relationship existed between the functioning of the penal institutions, and the social perceptions and expectations, which were dominant in society in a certain time period. Over-all, between 1650 and 1750 in Quito, city upon which my research focused, very few people were tortured, especially considering how often torture was requested by the prosecutors, and denied by the presiding or appeal judges.

1. Not all practices, though, were strictly legal. In fact, certain illegal practices were masked by legal forms. The Ius Commune -as adopted and interpreted in Spain since the 13^th century- determined, for example, that each person could be tortured only once. Nevertheless, the documents I consulted demonstrated that in many cases, people were tortured twice or even three times. Legally, the way by which this was done, was declaring, in the end of the session, that the torture was not over yet, but that it was only suspended. Hence, when the second session began, the judges declared that this session was but a mere continuation of the previous one, thus contravening the spirit of the laws, but not their actual wording.

1. Overall, however, I was quite amazed by the obedience to the laws and regulations. In fact, though I read the laws only after I did the documents themselves (the court cases), when at last I did get to see the legislation, I thought to myself that I could have written it myself, having understood what it contained by looking at the practice. Of course, this is not meant to justify the laws themselves. These laws, according to our current standards, were incredibly cruel, inhuman and unfair.