ABSTRACT
The earliest traces of torture in Germany are found in urban communes such as Cologne and Freiburg.1 The cities’ struggle to establish and defend a degree of sovereignty resulted in some of the earliest German legal documents referring explicitly to torture: fourteenth-century imperial privileges granted to the cities that testify to their right to use torture in criminal trials.2 Torture was not an innovation in European judicial procedure in the late Middle Ages, as some have thought, but its role changed and its share in the work of investigation vastly expanded. The increasing mobility of people during the late Middle Ages posed a significant problem for the evidentiary logic of oath, based as it was upon the assumption that the community would know by long experience who was honorable and who was not. John Langbein has described how torture became the tool of a new mode of investigation as criminal justice shifted from proving innocence through divine intervention to proving guilt with evidence obtained through human means.3 Torture was one of those means. At the same time, an expanded circle of persons became liable to torture. Previously only the most marginal of persons might be tortured, persons for whom no oath-helpers could be found to testify to their honor. Essentially, torture had been a technique reserved for outsiders, and only for those outsiders who lacked social connections and were suspected of the worst kinds of crime. It was during the long fifteenth century-beginning with the pogroms that followed the Black Death of 1348 and ending with the imperial criminal code of 1532 [the Carolina]—that torture became a regular part of German jurisprudence, reaching up through the social scale and into the protected ranks of citizens.
