특집논문 - 로마제정기 사법체계 내에서의 고문 (Judicial Torture in the Roman Empire)

서지정보

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· 저자명 : 고경주

초록

In the ancient world citizenship was the main determinant to protection from torture. In Republican Rome torture was applied to slaves alone under a wide range of circumstances. The use of torture was thought to lend credibility to the slave’s testimony, and made their testimony admissible. The reason is to be found in the belief that the slave was unable to tell the truth except upon the rack.
Nevertheless, it was a Republican rule that slaves might not be questioned under torture against their masters. The rule was still upheld in the Empire. While the general rule was that a slave could not be tortured in caput domini, there were exceptions. During trials for adultery, false census returns and maiestas, slaves were subjected to torture.
The Republican distinction between the free citizen and the slave became less important after the establishment of the Empire. Then a Roman citizen’s privilege of not being subject to torture was being eroded. The erosion was beginning with the case of the crime of maiestas and slowly enlarging to include other offences. The growing social division of the Empire which produced the two general classes known as the honestiores and humiliores made the latter relatively vulnerable to torture under the law. But until the Antonine period, the rule forbidding the torture of a Roman citizen was still valid. In the Severan period we have the first indisputable juristic indication that Roman citizens as suspects, not as convicts, were tortured to confess their own crimes. Although in practice Roman citizens of low rank had lost one of their precious rights, namely, exemption from torture, imperial policy officially recognized the practice in the third century. The occasional and irregular torture of free men by the Julio-Claudian emperors provided a practical precedent which later emperors and jurists attempted to regulate in theory.
Finally, in the post-Severan age even the position of honestiores can be shown to have deteriorated. By the turn of the fourth century or soon after, it was common for decurions to be tortured for maiestas, forgery, and magic.

영어초록

In the ancient world citizenship was the main determinant to protection from torture. In Republican Rome torture was applied to slaves alone under a wide range of circumstances. The use of torture was thought to lend credibility to the slave’s testimony, and made their testimony admissible. The reason is to be found in the belief that the slave was unable to tell the truth except upon the rack.
Nevertheless, it was a Republican rule that slaves might not be questioned under torture against their masters. The rule was still upheld in the Empire. While the general rule was that a slave could not be tortured in caput domini, there were exceptions. During trials for adultery, false census returns and maiestas, slaves were subjected to torture.
The Republican distinction between the free citizen and the slave became less important after the establishment of the Empire. Then a Roman citizen’s privilege of not being subject to torture was being eroded. The erosion was beginning with the case of the crime of maiestas and slowly enlarging to include other offences. The growing social division of the Empire which produced the two general classes known as the honestiores and humiliores made the latter relatively vulnerable to torture under the law. But until the Antonine period, the rule forbidding the torture of a Roman citizen was still valid. In the Severan period we have the first indisputable juristic indication that Roman citizens as suspects, not as convicts, were tortured to confess their own crimes. Although in practice Roman citizens of low rank had lost one of their precious rights, namely, exemption from torture, imperial policy officially recognized the practice in the third century. The occasional and irregular torture of free men by the Julio-Claudian emperors provided a practical precedent which later emperors and jurists attempted to regulate in theory.
Finally, in the post-Severan age even the position of honestiores can be shown to have deteriorated. By the turn of the fourth century or soon after, it was common for decurions to be tortured for maiestas, forgery, and magic.

참고자료

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