Use of torture The deceitful and dangerous experiment of the criminal question, as it is emphatically styled, was admitted, rather than approved, in the jurisprudence of the Romans. They applied this sanguinary mode of examination only to servile bodies, whose sufferings were seldom weighed by those haughty republicans in the scale of justice or humanity: but they would never consent to violate the sacred person of a citizen, till they possessed the clearest evidence of his guilt.[1] The annals of tyranny, from the reign of Tiberius to that of Domitian, circumstantially relate the executions of many innocent victims; but, as long as the faintest remembrance was kept alive of the national freedom and honour, the last hours of a Roman were secure from the danger of ignominious tor- ture,[2] The conduct of the provincial magistrates was not, however, regulated by the practice of the city or the strict maxims of the civilians. They found the use of torture es- tablished, not only among the slaves of oriental despotism, but among the Macedonians, who obeyed a limited monarch; among the Rhodians, who flourished by the liberty of commerce; and even among the sage Athenians, who had asserted and adorned the dignity of human kind.[3] The acquiescence of the provincials encouraged their governors to acquire, or perhaps to usurp, a discretionary power of employing the rack, to extort from vagrants or plebeian criminals the confession of their guilt, till they insensibly proceeded to confound he distinction of rank and to disregard the privileges of Roman citizens. The apprehensions of the subjects urged them to solicit, and the interest of the sovereign engaged him to grant, a variety of special exemptions, which tacitly allowed, and even authorized, the general use of torture. They protected all persons of illus- trions or honourable rank, bishops and their presbyters, pro- fessors of the liberal arts, soldiers and their families, municipal officers, and their posterity to the third generation, and all
171 The Pandects (l. xlvii. tit. xviii.) contain the sentiments of the most celebrated civilians on the subject of torture. They strictly confine it to slaves; and Ulpian himself is ready to acknowledge that Res est fragilis, et periculosa, et quæ veritatem fallat.
172 In the conspiracy of Piso against Nero, Epicharis (libertina mulier) was the only person tortured; the rest were intacti tormentis. It would be superfluous to add a weaker, and it would be difficult to find a stronger, example, Tacit. Annal. xx. 57.
173 Dicendum ... de institutis Atheniensium, Rhodiorum, doctissimorum homi- mum, apud quos etiam (id quod acerbissimum est) liberi civesque torquentur. Cicero Partit. Orat. c. 34. We may learn from the trial of Philotas the practice
of the Macedonians (Diodor. Sicul. l. xvii. p. 604. Q. Cert. l. vi. c. 11).