tag:blogger.com,1999:blog-6422857.post116172166321877107..comments2023-10-05T08:25:13.232-04:00Comments on Biblical Evidence for Catholicism: The Controversial "Torture" Issue and Catholic Development Concerning the Treatment of HereticsDave Armstronghttp://www.blogger.com/profile/07771661758539438173noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-6422857.post-25411199878243808342012-12-21T22:02:27.149-05:002012-12-21T22:02:27.149-05:00A different alternative to Trial by Ordeal was dev...A different alternative to Trial by Ordeal was developed in Catholic England: Trial by Jury. English common law forbade torture in criminal cases unless with permission of the Privy Council (effectively meaning only for treason). However, if a person refused to enter a plea then peine forte et dure (i.e. pressing the person under progressively larger stones) was used to coerce a plea. The continental supporters of torture considered their system more “rational” than juries. “The English substitute” observers Langbein, “retained something of the ‘inscrutability’ of the ordeals.” Jurors were not professionals like judges or inquisitors and so might be easily swayed or might fail to judge impartially (initially juries included both accusers and witnesses). cameronhttps://www.blogger.com/profile/01043689077872317309noreply@blogger.comtag:blogger.com,1999:blog-6422857.post-57136259219051594722012-12-21T22:00:59.229-05:002012-12-21T22:00:59.229-05:00Without condoning its use we can seek to understan...Without condoning its use we can seek to understand why Church inquisitions sometimes resorted to torture. Our tendency is to assume that it was out of sadistic cruelty and a lack of respect for persons, truth, or justice. <br /><br />Actually it may have arisen for the exact opposite reason – a very high regard for justice manifested in a desire to protect innocent persons from wrongful conviction for serious crimes, especially considering the severity of the punishments.<br /><br />Legal historian John Langbein argues in his seminal work, Torture and the Law of Proof (1977), that in a “valiant effort…to exclude completely the possibility of mistaken conviction,” courts in 13th to 18th century Europe developed a system of proof in which only a confession or the testimony of two credible eyewitnesses was sufficient to convict in cases of serious crime. In so doing, they set the level of proof too high and, unable to obtain convictions in most cases, were forced to create a separate system in which physical torture was used to elicit confessions. <br /><br />In the early Middle Ages a common means used to ascertain certain guilt before punishing an accused for a serious offense was the crude Trial by Ordeal, which sought divine intervention in settling matters. The Fourth Lateran Council forbade clergy from administering ordeals, striking a blow to its legitimacy. On the continent it was replaced by ancient Roman law. <br /><br />Instead of ordeals Roman Law relied on material evidence, confession or two eyewitnesses of good standing as sufficient proof in capital offenses. Material or circumstantial evidence, however, was not considered sufficient proof in medieval courts since judges wanted to be absolutely certain before convicting (we now accept “beyond reasonable doubt”). The problem was one did not always have two good eyewitnesses or a freely given confession. Other than dismissing charges altogether the only other solution appeared to be accepting some circumstantial evidence or one eye-witness, not as a “full-proof” but as a “half-proof” – not sufficient to convict but enough to warrant further investigation. Testimony then had to come from the accused himself. Since “half-proofs” indicated possible guilt the use of torture was considered justified to settle the matter. <br /><br />As a safeguard against false confessions wrought under torture the investigators were to seek details of the crime that “no innocent could know.” The accused had to repeat his confession after recovering and then again in court. Even if he later retracted his confession he was not supposed to be questioned under torture again. These safeguards, however, could be circumvented and abused. <br /><br />“For all its evils,” Langbein reminds us, “torture was employed in aid of a rational as opposed to a ritual mode of proof. The use of torture presupposed a legal system that wanted to base judgment on the truth and thought it feasible to get the truth in part by means of regulated coercion.”<br /><br />Contrary to popular myth inquisitors resorted to torture in only a small minority of cases and their methods did not include red hot pincers, the Iron Maiden, or the like. In fact the types of torture used by inquisitors were relatively mild compared to contemporary secular courts, as they were forbidden to use methods that resulted in bloodshed, mutilation or death. Whippings,beatings and later the strappado were used.<br /><br />What eventually brought about the slow demise of judicial torture, according to Langbein, was not enlightened criticism of the system (its shortcomings had long been known) but modification of the Law of Proof that allowed for greater judicial discretion. Certitude as to guilt or innocence was no longer expected. This meant that convictions did not invariably require eyewitnesses or confession.cameronhttps://www.blogger.com/profile/01043689077872317309noreply@blogger.comtag:blogger.com,1999:blog-6422857.post-12238982783705664692010-04-17T18:14:54.813-04:002010-04-17T18:14:54.813-04:00Thanks for your comment, Teresa. The debate on She...Thanks for your comment, Teresa. The debate on Shea's blog has long been acrimonious and unhelpful, IMO. It's been beaten to death (no pun intended).<br /><br />I was trying to get past the raw emotions over there and reach some objective conclusions. <br /><br />I think a position of absolute opposition to all coercion does have to deal squarely with Catholic history.Dave Armstronghttps://www.blogger.com/profile/07771661758539438173noreply@blogger.comtag:blogger.com,1999:blog-6422857.post-31333848481228438432010-04-17T17:50:46.912-04:002010-04-17T17:50:46.912-04:00This was extremely helpful. I am right with you wi...This was extremely helpful. I am right with you with regards to EIT's or "torture". I don't believe these actions to be intrinically evil when used for the common good against terrorists to save innocent lives. These actions are not purposefully used against innocent human beings, like abortion, which is intrinsically evil. I have gone back and forth with Marc Shea and a couple other Catholics who claim that EIT's are intrinsically evil.Teresahttps://www.blogger.com/profile/16040553825059591114noreply@blogger.com