First, a caveat: I studied law, not history,[1] so apologies if this comment is a bit too dry. I should add that I am not an expert on Roman law or Athenian law.

It is worth to look at Athenian law first, as it shaped and influenced Roman law.

Torture in Athenian Law

Athenian law courts operated differently from modern courts and accordingly, the role of the witnesses and evidence was also different: ‘speakers won favour from juries not by applying extrinsic proof against objective rules, but by evaluating their character against the subjective values of the audience to demonstrate their trustworthy character.’[2]

The simple description of the situation in Athenian law is that citizens (Athenian-born males) were protected from torture under a decree passed by Scamandrius[3] (and of course enjoyed numerous other rights and privileges) while slaves gave evidence under torture – but only if their owner consented to the infliction of torture on them. Citizens were put to torture occasionally, in cases of treason or crimes against the state.[4] It is also generally accepted that free non-citizens (e.g. non-Athenian Greeks) could be subjected to torture in investigations of homicide.[5]

In the Athenian state, torture of slaves performed two functions: first, ‘as an instrument of demarcation, it delineates the boundary between slave and free, between the untouchable bodies of free citizens and torturable bodies of slaves’; and secondly, as a ‘search for the truth.’[6] Of course, there was an awareness that evidence adduced by torture might not be reliable (particularly as slaves who, despite the torture, defended their masters would often be rewarded with their freedom).

In Rhetoric, Aristotle explains that torture (being one of the ‘inartificial’ or ‘inartistic’ proofs) ‘appears trustworthy, because a sort of compulsion is attached to it’, but he cautions that ‘those under compulsion are as likely to give false evidence as true, some being ready to endure everything rather than tell the truth, while others are equally ready to make false charges against others, in the hope of being sooner released from torture.’[7] The word used by Aristotle for torture is basanos (βάσανος) and the challenge whereby one party would demand the opponent’s slaves to be tortured was called proklesis eis basanon.[8] Basanos originally meant touchstone used to test the purity of metals such as gold and silver and its meaning was extended ‘to denote a test or trial to determine whether something is real or genuine’.[9] Peters explains the use of basanos as follows: ‘a kind of inquiry whose results may serve as evidence in a sub-procedure within a larger legal procedure that is essentially adversarial but whose citizen-litigants may not be subjected to the sub-procedure of basanos.’[10] Generally, the ‘challenge to torture’ was made in writing (usually specifying the mode of torture) which was then delivered to the opponent.[11] It would consist of questions which if accepted would be put to the slave, whose testimony was limited to yes or no answers.[12]

Following Aristotle’s argument in Politics,[13] duBois concludes that the Athenian view was that ‘it is in the body of the slave that the master’s truth lies, and it is in torture that his truth revealed.’[14] The testimony of slaves ‘became equal to that of citizens by means of physical coercion’.[15] In other words, torture secured the veracity of the testimony of the slaves. Slaves, not being creatures of reason, would not tell the truth, but for the torture employed. Unlike a slave ‘who participates in reason so far as to apprehend it but not to possess it’,[16] masters would be able to conceal the truth as they possess reason. Their vulnerability lies in the body of their slaves who can be forced to produce the truth.[17] (Aristotle’s position is a bit more complicated than implied above.)

Examples

A couple of examples in speeches.

Antiphon, one of the Attic orators, in his speech On the murder of Herodes, brings attention to the ‘actual character’ of the torture: ‘The slave was doubtless promised his freedom: it was certainly to the prosecution alone that he could look for release from his sufferings.’[18] He then goes on to remind his audience that ‘witnesses under torture are biassed in favor of those who do most of the torturing; they will say anything likely to gratify them.’[19]

In Isaeus’ speech, On The Estate of Ciron, the speaker argues that he is a son of Ciron's daughter, and therefore, his claim to the estate is stronger than Ciron’s nephew. The speaker states that the slaves who belonged to Ciron would be able to speak to the fact that his mother was the daughter of Ciron and requests his opponent, the nephew, to surrender the male and female slaves in order to ‘obtain proof of these facts by evidence given under torture’.[20] However, the opponent refuses his request for what is a ‘decisive a method of testing’, prompting the speaker to conclude that ‘they are giving false evidence’.[21] The next section is worth citing in full:

‘You Athenians hold the opinion that both in public and in private matters examination under torture is the most searching test; and so, when you have slaves and free men before you and it is necessary that some contested point should be cleared up, you do not employ the evidence of free men but seek to establish the truth about the facts by putting the slaves to torture. This is a perfectly reasonable course; for you are well aware that before now witnesses have appeared not to be giving true evidence, whereas no one who has been examined under torture has ever been convicted of giving false evidence as the result of being tortured.’[22]

There is some debate over whether or not passages such as the above are accurate descriptions of everyday legal procedures (or attitudes) towards the torture of slaves. Peters surmises that ‘the fifth and fourth centuries provide some ambiguous evidence that the judicial torture of slaves was acceptable in theory, but very little evidence either that many slaves were tortured or Athenians though very highly of such testimony.’[23] In the 42 instances of challenges of either ‘torture my slaves for evidence’ or ‘let me torture yours’ which we can find in the extant speeches, the challenge was rejected 40 times and accepted twice but not carried through.[24]