What shall I say of these judgments which men pronounce on men, and which are necessary in communities, whatever outward peace they enjoy? Melancholy and lamentable judgments they are, since the judges are men who cannot discern the consciences of those at their bar, and are therefore frequently compelled to put innocent witnesses to the torture to ascertain the truth regarding the crimes of other men. What shall I say of torture applied to the accused himself? He is tortured to discover whether he is guilty, so that, though innocent, he suffers most undoubted punishment for crime that is still doubtful, not because it is proved that he committed it, but because it is not ascertained that he did not commit it. Thus the ignorance of the judge frequently involves an innocent person in suffering. And what is still more unendurable— a thing, indeed, to be bewailed, and, if that were possible, watered with fountains of tears— is this, that when thejudge puts the accused to the question, that he may not unwittingly put an innocent man to death, the result of this lamentable ignorance is that this very person, whom he tortured that he might not condemn him if innocent, is condemned to death both tortured and innocent. For if he has chosen, in obedience to the philosophical instructions to the wise man, to quit this life rather than endure any longer such tortures, he declares that he has committed the crime which in fact he has not committed. And when he has been condemned and put to death, the judge is still in ignorance whether he has put to death an innocent or a guilty person, though he put the accused to the torture for the very purpose of saving himself from condemning the innocent; and consequently he has both tortured an innocent man to discover his innocence, and has put him to death without discovering it. If such darknessshrouds social life, will a wise judge take his seat on the bench or no? Beyond question he will. For human society, which he thinks it a wickedness to abandon, constrains him and compels him to this duty. And he thinks it no wickedness that innocent witnesses are tortured regarding the crimes of which other men are accused; or that the accused are put to the torture, so that they are often overcome with anguish, and, though innocent, makefalse confessions regarding themselves, and are punished; or that, though they be not condemned to die, they often die during, or in consequence of, the torture; or that sometimes the accusers, who perhaps have been prompted by a desire to benefit society by bringing criminals to justice, are themselves condemned through the ignorance of the judge, because they are unable to prove the truth of their accusations though they are true, and because the witnesses lie, and the accused endures the torture without being moved to confession. These numerous and important evils he does not consider sins; for the wise judge does these things, not with any intention of doing harm, but because his ignorance compels him, and because human society claims him as a judge. But though we therefore acquit the judge of malice, we must none the less condemn human life as miserable. And if he is compelled to torture and punish the innocent because his office and his ignorance constrain him, is he a happy as well as a guiltless man? Surely it were proof of more profound considerateness and finer feeling were he to recognize the misery of these necessities, and shrink from his own implication in that misery; and had he any piety about him, he would cry to God From my necessities deliver me.
From Medieval Sourcebook: the Responses of Pope Nicholas I to the Questions of the Bulgars A.D. 866
If a thief or a robber is apprehended and denies that he is involved, you say that in your country the judge would beat his head with lashes and prick his sides with iron goads until he came up with the truth. Neither divine nor human law allows this practice in any way, since a confession should be spontaneous, not compelled, and should not be elicited with violence but rather proferred voluntarily. But if it just so happens that you find nothing at all which casts the crime upon the one who has suffered, aren't you ashamed and don't you recognize how impiously you judge? Likewise, if the accused man, after suffering, says that he committed what he did not commit because he is unable to bear such [torture], upon whom, I ask you, will the magnitude of so great an impiety fall if not upon the person who compelled this man to confess these things falsely? Indeed, the person who utters from his mouth what he does not hold in his heart is known not to confess but to speak.[cf. Mt. 12:34] Therefore leave such practices behind and heartily curse the things which you have hitherto done foolishly. Indeed, what fruit shall you have in those practices, of which you are now ashamed. Finally when a free man is caught in a crime, unless he is first found guilty of some wicked deed, he either falls victim to the punishment after being convicted by three witnesses or, if he cannot be convicted, he is absolved after swearing upon the holy Gospel that he did not commit [the crime] which is laid against him, and from that moment on the matter is at an end, just as the oft-mentioned Apostle, the teacher of the nations, attests, when he says: an oath for confirmation is an end of all their strife.[Heb. 6:16]