There has been a tendency, even among authors who have regarded Valerius Maximus as worthy of independent study, to use the Facta et Dicta as a neutral conduit of information about other wider areas. Valerius has thus sometimes become a sourcebook mined for nuggets of information but effectively invisible to those who work it. The past thirty years have seen valuable contributions that raise awareness of the importance of the genre of the Facta et Dicta Footnote 2 and (to a lesser extent) the personal input of Valerius,Footnote 3 but traces of the ‘conduit’ approach are still preserved in some authors’ attempts to justify their study of the work. For instance, Valerius provides an insight into the historical image of Marius, and is valuable precisely because he has no opinion or personal ideas to offer,Footnote 4 because he preserves the language of school rhetoric,Footnote 5 because his collection gives us strictly conventional material about religion,Footnote 6 because he presents an unadulterated mirror-image of imperial policy and propagandaFootnote 7 and because he is ‘middle-brow’ and thus depicts common attitudes.Footnote 8 The text has also sometimes been studied for what it reveals about Early Imperial Latin, non-Republican culture and the organisation of Roman knowledge.Footnote 9 Most recently, Tara Welch has argued that Valerius deliberately strips exempla of all authorial input, including his own, in an attempt to make himself a conduit for traditio. Footnote 10 Alternatively, study of the text is justified by interest in the time period in which it was written.Footnote 11
Hans-Friedrich Mueller, at the outset of his work on Roman religion in Valerius Maximus, proposes that it would be a valuable exercise to accept Valerius’ stated views on religion as a sincere expression of belief.Footnote 12 I shall follow Mueller's lead to take a similar approach to Valerius Maximus himself: I argue that increasing engagement with Valerius reveals a cogent and thoughtful author, worthy of study in his own right. In 2006, Rebecca Langlands's book Sexual Morality in Ancient Rome made a vital statement about the way in which the Facta et Dicta needs to be approached. She stresses the importance of the chapter as a unit in the work. By examining chapters she demonstrates Valerius’ exploration of questions of morality by showing the challenging juxtapositions and the gradual unwinding of ideas that arises when chapters are read through from beginning to end. As she says:
… doubt, conflict, paradox and dangerous extremes are the testing points of ethical principles, and within his conceptual framework of tradition, gods, emperor and above all nation Valerius makes full use of them to stimulate the readers to moral reflection.Footnote 13
Langlands, however, having beautifully articulated the complexity of the chapters she analyses, still hesitates on the competency of our author and the process of construction. She says, commenting on the complex effect created in the chapters: ‘Whether this is always wholly intentional is unclear.’Footnote 14
This paper will explore the evidence about torture in Valerius Maximus’ Facta et Dicta Memorabilia in order to demonstrate the complexities of two topics that are often regarded as straightforward; first, this paper will argue that Valerius Maximus is a much more aware and thoughtful author than has been previously believed and, second, it will present further evidence that torture, even when applied to slaves in a judicial sense, was not an institution whose effectiveness was universally accepted at Rome.Footnote 15 Rather, it will be suggested that Valerius Maximus consistently exposes the ineffectiveness of torture as a means of imposing authority and gaining information by stressing the ability of people from all backgrounds to call upon their own resources and resist their torturers. Thus Valerius demonstrates the extent to which evidence obtained under torture could reveal the limitations of that technique. The topic of torture will be treated as it appears in three chapters of the Facta et Dicta: first, De Patientia (3.3); second, De Fide Seruorum (6.8); and finally—and most directly—De Quaestionibus (8.4).
Valerius Maximus’ De Patientia (3.3) deals overwhelmingly with the spectre of torture and yet there is no idea of passivity in the English sense. Valerius opens the chapter by stressing the relationship between patientia and fortitudo—the subject of the previous chapter. In the first words of the preface he also makes the point (relevant to the final exemplum of 3.2) that fortitudo has been demonstrated pariter by both uiri and feminae; 3.3 thus begins with a strong sense of the inclusivity of fortitudo and, presumably, its connected quality patientia. Nevertheless, the two internal exempla are drawn from the Roman male elite. Robert Kaster makes a strong distinction between the patientia of free men and that of slaves. He writes of the former quality:
… patientia says not only ‘I am’ but also ‘I choose’ against experience that seems to threaten existence and nullify choice … Patientia demonstrates that you are self-possessed—in your own potestas, not that of circumstance—and that you are acting under the direction of your own will.Footnote 16
The first two exempla of 3.3 illustrate this conception of patientia very effectively. In 3.3.1, Mucius Scaevola attempts to kill the Etruscan king Porsenna and is caught; he proceeds to burn off his right hand and this action is framed explicitly as a response to the possibility of interrogation through torture:
… nec causam aduentus texit et tormenta quantopere contemneret mira patientia ostendit.Footnote 17
… discovered, he did not conceal his reason for being there and his wondrous endurance showed how greatly he despised physical torments.
Torture is not inflicted upon Scaevola and he gives up no information because he seizes the initiative and demonstrates that torture will not work by mutilating himself first.
At 3.3.2, an unidentified Pompeius is sent as an envoy to King Gentius; he is captured and ordered to reveal the plans of the Senate and in response he uses a lamp to burn off his finger. Once again, this is described as an effective way of discouraging torture:
… eaque patientia regi simul et desperationem tormentis quicquam ex se cognoscendi incussit et expetendae populi Romani amicitiae magnam cupiditatem ingenerauit.
… and, by this endurance, he at the same time showed the king the futility of learning anything from him by torture and engendered in him a great desire to pursue the friendship of the Roman people.
Thus, while no Roman citizens are exposed to torture at the hands of foreign powers here, this is because they demonstrate their self-possession and potestas in such a way that the efficacy of torture is invalidated.Footnote 18
After a cryptic comment about the dangers of pursuing patientia in a Roman context, Valerius moves into the external material. In the opening external exemplum, a nobilissimus puer of Macedonia attends Alexander at a sacrifice and does not flinch when a hot coal falls onto his arm. Valerius admires the perseuerantia of the boy and comments that Darius would have realized what he was up against if he had seen such resolve even in those of infirma aetas. Valerius builds on this transition from mature noble Roman figures to the foreign boy to discuss the different means by which uirtus may be supported in the spirit (3.3.ext.1):
est et illa uehemens et constans animi militia, litteris pollens, uenerabilium doctrinae sacrorum antistes, philosophia. quae ubi pectore recepta est, omni inhonesto atque inutili adfectu dispulso, totum solidae uirtutis munimento confirmat, potentiusque metu facit ac dolore.
That quality is both forceful and resolute in the service of the mind, powerful in letters, high priestess of the revered rites of learning, Philosophy. Who, when she has been accepted into the breast, with every dishonourable and useless emotion evicted, strengthens the whole with a fortification of solid uirtus and she makes it more powerful than fear or pain.
This opposition between the uirtus instilled by philosophy and the forces of metus and inhonestus atque inutilis adfectus is demonstrated with four exempla in which philosophers struggle with tyrants; Valerius focusses sharply on the points at which this struggle is distilled into a contest between torturer and victim.Footnote 19 In every instance, the philosopher triumphs over the tyrant in some way. The sequence begins with Zeno of Elea who travels to Agrigentum to rouse the populace against the tyrant Phalaris. Eventually, Phalaris has him tortured in the marketplace in front of a summoned audience. Not only does Zeno refuse to reveal his accomplices, but also he casts suspicion on the tyrant's friends and finally successfully exhorts the people of Agrigentum to overthrow Phalaris (3.3.ext.2). Valerius underlines the contrast between the physical vulnerability of the philosopher and his strength of purpose:
senis ergo unius eculeo impositi non supplex uox nec miserabilis eiulatus, sed fortis cohortatio totius urbis animum fortunamque mutauit.
Therefore, the voice of one old man pinned on the rack, not a pleading voice or a pitiful lament, but a brave rallying cry, changed the spirit and fortune of an entire city.
Despite Zeno's age, and even while he is on the rack, he defies his torturers and seizes an active powerful role.
At 3.3.ext.3, Valerius goes on to a second Zeno (in fact, probably the same Zeno) and his opposition to the tyrant Nearchus. In this case, Zeno is actually plotting to assassinate Nearchus and is tortured for the names of his accomplices as well as, Valerius states, to punish him: a supplicium. Once again, Zeno resists the torture and converts passive endurance into active fortitudo; asking to be released to give the tyrant information in private he actually bites Nearchus’ ear and refuses to let go until he is killed. The language of the exemplum emphasizes Zeno's active role; he is described as uictor doloris sed ultionis cupidus—so in control of the pain that he looks past it rationally to plan his revenge. The last words of the exemplum balance Zeno's triumph against Nearchus in such a way as to suggest it is a worthy trade-off for death:
aurem eius morsu corripuit, nec ante dimisit quam et ipse uita et ille parte corporis priuaretur.
he grabbed the ear of that man [Nearchus] in a bite and he did not leave off before he himself had been robbed of his life and that man of a part of his body.
In 3.3.ext.4, Anaxarchus is tortured in vain by Nicocreon, the tyrant of Cyprus:
nec ulla ui inhiberi posset quo minus eum amarissimorum maledictorum uerberibus inuicem ipse torqueret …
no force was able to discourage him so that he himself in any way stopped torturing Nicocreon in turn with lashes of the bitterest curses …
This remarkable comment sees the tortured philosopher overturn the process altogether to torture the tyrant with verbal uerbera. When Nicocreon threatens to remove Anaxarchus’ tongue, he raises the stakes again, accuses the tyrant of effeminacy, bites off his own tongue and spits it into Nicocreon's mouth. This grotesque parody of penetration acts to underline Anaxarchus’ charge that Nicocreon is effeminatus and, according to Valerius, ensures that the philosopher's death is clarior than his already glorious life.
In the contest between torturer and victim recorded at 3.3.ext.5, the winner is by no means in doubt. Theodotus not only resists torture like those listed before him, but also is depicted defying, and thus destroying, each of the tools of torture in turn before using a false confession to implicate the tyrant Hieronymus’ most faithful henchman. The exemplum opens with a series of active verbs, initially positioned in pairs, which, by underlining the way in which Hieronymus breaks the instruments of torture on Theodotus’ immovable resistance, demonstrate the closeness of patientia to fortitudo; as Kaster argues, this patientia is really a demonstration of potestas:
in Theodoto quoque uiro grauissimo Hieronymus tyrannus tortorum manus frustra fatigauit: rupit enim uerbera, fidiculas laxauit, soluit eculeum, lamminas exstinxit prius quam efficere potuit ut tyrannicidii conscios indicaret.
Against Theodotus also, a man of very great authority, Hieronymus the tyrant exhausted the hands of the torturers in vain: for he broke the whips, he loosened the cords, he unwound the rack, he quenched the burning metal plates before he could bring it about that he [Theodotus] should point out any fellow conspirators in tyrannicide.
This is the final exemplum in the sequence of philosophers who, inspired by their learning, demonstrate the complete ineffectiveness of torture as a means either of gaining information or of publicly enforcing one's authority. Rather, each use of torture that Valerius documents gives the victim a chance to enter a contest with those controlling the interrogation; a platform upon which to demonstrate their conviction, courage and contempt. And this (Valerius goes on to show) is not only the case for Roman men of high status and Greek philosophers.
De Patientia continues with an exemplum that seems at first glance to disrupt the sequence. At 3.3.ext.6 Valerius describes the way in which Indians expose their bodies to the extremes of the environment in order to toughen themselves. The text here picks up two key themes from the series of philosophers:
… atque his haud parua gloria contemptu doloris adquiritur titulusque sapientiae datur.
… and no small glory accrues to these men by their scorn for pain and the title of wisdom is given to them.
Gloria and sapientia are here specified as the consequence of patientia and the stage is widened to demonstrate the universal availability of these qualities, even to those at the extremities of the Roman world; patientia is not the exclusive possession of Greece and Rome. Even after this broadening of the field, Valerius identifies a transition from the Indians to the subject of the final exemplum of the chapter (3.3.ext.7):
haec e pectoribus altis et eruditis orta sunt, illud tamen non minus admirabile seruilis animus cepit.
These exempla arose from elevated and learned breasts, however, the following, no less admirable, a slave's mind conceived.
In the climactic exemplum of De Patientia, the subject is not a Roman noble nor a Greek philosopher but a barbarus seruus—slave to a master killed by Hasdrubal. According to Robert Kaster, slave patientia is different to the patientia displayed by free men:
In the realm of social relations, the patientia of slaves was in principle understood to be total: there was no request, no imposition that a slave would not be expected to suffer without resistance … This is patientia at the opposite pole from the virtue we previously were considering, not a testing and assertion of will as a way of establishing substantial character (‘greatness of spirit’), but a complete absence of will on the part of someone at the rock bottom of the social hierarchy.Footnote 20
Yet here Valerius shines a spotlight on a slave and a barbarian who renders meaningless the torture he receives as punishment simply by refusing to react:
seruus barbarus Hasdrubalem, quod dominum suum occidisset grauiter ferens, subito adgressus interemit, cumque conprehensus omni modo cruciaretur, laetitiam tamen, quam ex uindicta ceperat, in ore constantissime retinuit.
A barbarian slave suddenly attacked and killed Hasdrubal, aggrieved that that man had killed his master and, although he had been arrested and was being tortured in every way, nevertheless he kept the joy which he seized from his revenge on his face most steadfastly.
The slave not only retains his joy constantissime, but it is a joy that he has seized (capere) from revenge; the arrest and the torture are described within the subordinate clause, where the slave is the subject of the passive verb cruciaretur, but Valerius focusses the reader's attention on the main clause, and the relative clause within this, in which the slave is the subject of active verbs.Footnote 21 It is not only the position of the exemplum that gives it significance;Footnote 22 Valerius uses the story as a spring-board into a passage stressing the accessibility of uirtus to all, irrespective of social or legal status, in which he maintains that the only limit to how much uirtus an individual can possess is how much they can bear.Footnote 23 So for Romans, philosophers, foreigners and slaves alike in this chapter, resistance to physical force provides a route to gloria, and the physical force under discussion is overwhelmingly torture. What is, perhaps, unexpected is that, for Valerius Maximus, the experience of being tortured is very much an active one; Scaevola and Pompeius dismember themselves before their captors have the opportunity to do so (3.3.1 and 3.3.2) and in the latter case this act changes King Gentius’ attitude towards Rome entirely;Footnote 24 Zeno likewise is able to change the fortuna of an entire city from his position on the rack and to maim the person controlling the torture (3.3.ext.2 and 3.3.ext.3); Anaxarchus tortures the torturers with insults and assaults the tyrant's mouth (3.3.ext.4), and Theodotus defeats every technique of the torturers and tricks the tyrant with false information (3.3.ext.5). These exempla fit within the model identified by Bernstein of the free victims of tyrants whose resistance to torture renders them ‘exemplary figures of virtue’.Footnote 25 Valerius, however, adds to this conventional image the barbarian slave who holds on tightly to the joy he has seized from revenge and cannot be budged from it (3.3.ext.7). The victim, whether free or not, appears to be at all times in control of the situation and the questions asked by interrogators are never answered.Footnote 26
The paradoxical ability of torture to empower its lowliest victims is explored elsewhere in the Facta et Dicta. Most remarkably, the opportunity available for victims of torture is available not just to barbarian slaves in foreign conflicts, but also to slaves at Rome in judicial contexts—a group legally vulnerable to interrogation by force for the vast majority of Rome's history.
The judicial torture of slaves is an institution that we tend to take for granted as a part of Roman life. As Edward Peters writes in his history of torture, the earliest Roman law assumes the torture of slaves in trials, initially as suspects and over time also as witnesses.Footnote 27 By the time of Justinian's Digest, there was a body of legislation in place dealing with how to torture slaves in the most efficient and effective way possible—De Quaestionibus (48.18).Footnote 28 Where scholars have looked at torture, the focus is very much on those cases where freeborn individuals have been tortured in the Imperial period with a concentration naturally on exploring those uses of torture which were incendiary or novel, rather than those cases in which torture was considered to be acceptable.Footnote 29 Such cases as the torture of a free man by Tiberius who, on finding the man to have been wrongly accused, put him to death as he had been too dishonoured to live (Cass. Dio, 58.3.7) are fascinating but, as Brunt states in the context of law, the vast majority of our evidence does deal with the torture of slaves.Footnote 30 Bernstein has recently examined evidence in the declamatory tradition for slave torture but, once again, he is primarily interested in what it can be used to say about the free owners of those slaves in court.Footnote 31
Valerius Maximus describes the torture of both free (foreign) men and slaves, and in both categories he treats torture with remarkable consistency. Whether it is used on free men or slaves and whether it is the tool of a tyrant or a Roman court, torture is never (with one partial exception) a successful technique.Footnote 32 Just as it fails to intimidate Mucius Scaevola, Pompeius, Zeno or Theodotus into giving information, just as it cannot stop Anaxarchus from shouting abuse or the barbarus seruus from rejoicing in the death of Hasdrubal, it cannot persuade slaves to give evidence against their masters in court if they do not want to do so.Footnote 33
In chapter 6.8, De Fide Seruorum, the first exemplum describes the trial of Marcus Antonius on a charge of incestus. Footnote 34 The prosecutors demand the interrogation of the slave who was alleged to have carried a lantern for his master's night-time assignations. Valerius specifies that the seruus is young enough to be imberbis and yet he does not run away from the idea of his own cruciatus. Footnote 35 Instead, he urges his master to hand him over for torture:
… Antonium hoc nomine uehementius confusum et sollicitum ultro est hortatus ut se iudicibus torquendum traderet, adfirmans nullum ore suo uerbum exiturum quo causa eius laederetur …
… he spontaneously encouraged Antonius, disturbed and upset on this account, to hand him over to the judges to be tortured, guaranteeing that no word would leave his mouth by which the case of that man would be damaged …
There is no doubt that the torture is a result of the boy's own decision in this exemplum; while Antonius is confusus and sollicitus about allowing the boy to be tortured, the boy endures the ordeal with mira patientia. Valerius goes into detail about the judicial process of torture at Rome in order to demonstrate this patientia, but once again tucks the interrogation into a series of perfect participles that show the various tortures hanging from a nominative subject who remains defiantly and undeniably active.
… plurimis etenim laceratus uerberibus eculeoque impositus, candentibus etiam lamminis ustus, omnem uim accusationis custodita rei salute subuertit.
… for, cut by a deluge of blows, subjected to the rack, and even burned with hot iron plates, he overthrew all the force of the accusation with the safety of the defendant held in his care.
The beardless boy turns away the force of the criminal charges with single-minded physical resistance. Valerius goes on to describe the pius and fortis spirit of the boy who, having demanded the opportunity to enter the contest, fights for his master and wins; interestingly there is nothing in the exemplum to suggest that Antonius was, in fact, innocent. Subuertere seems like a particularly evocative word-choice here; as Valerius points out, this active defence of a very passive master is not behaviour normally expected of a slave.Footnote 36
Kaster's interpretation of servile patientia does not fit well with the mira patientia demonstrated by M. Antonius’ slave; this slave's actions are very much defined by an eagerness to be tested and they result in a triumphant victory over the uis of the interrogators. There are, in fact, obvious parallels here to the exemplum detailing the torture of the free man and philosopher Theodotus at 3.3.ext.5. Both exempla specify the victims’ resistance to uerbera, the eculeus and the lamminae in their refusal to incriminate others—his master in the slave boy's case and Theodotus’ conscii. The boy's mira patientia also aligns him with Mucius Scaevola at 3.3.1. The resistance of this slave to judicial torture at Rome is conceptualized in the same terms as the resistance of Romans to foreign kings and philosophers to tyrants.
Later in the same chapter, we see a group of praiseworthy slaves protecting their master by resisting torture. At 6.8.5 the slaves of C. Plotius Plancus, proscribed by the triumvirs, refuse to reveal the whereabouts of their hidden master despite their ordeal:
… a quibus comprehensi serui latentis multumque ac diu torti negabant se scire ubi dominus esset.
… the slaves of the hidden man, seized by the pursuers and tortured a great deal and for a long time, denied that they knew where their master was.
Once again, the torture of the slaves is conveyed with a perfect participle and the slaves are the subjects of a strong active verb: negare. The slaves are unbreakable because they consciously refuse to betray their master.Footnote 37 Unfortunately, however, this is the one interrogation by torture in the entire Facta et Dicta Memorabilia that is finally successful in its aim, but not because the slaves give way:
… non sustinuit deinde Plancus tam fideles tamque boni exempli seruos ulterius cruciari, sed processit in medium iugulumque gladiis militum obiecit.
… then Plancus could not bear for such faithful slaves, slaves setting such a good example, to be tormented further, but he advanced into the midst of things and exposed his throat to the swords of the soldiers.
The slaves effectively resist the saeuitia of the torture and provide an exemplum of endurance that their master cannot bear to follow.Footnote 38 The contrast points up Valerius’ underlying assumption: slaves are capable of acting with dignity and self-possession even in the context of judicial (or extra-judicial) torture, where their lack of dignitas and standing should be at its most pronounced. Because slaves can, and do, choose to act in this way, torture is ineffective and even provides a platform for heroic resistance.Footnote 39 Valerius’ presentation of these incidents dramatically demonstrates his belief in a fundamental universal accessibility of virtue that, when put into action, can subvert society's expectations of free and servile behaviour: these slaves act as impressive protagonists, while their masters provide an anxious helpless audience.
These two stories, especially in the context of their chapter, could be seen, nevertheless, as doing nothing more unusual than supporting the power of the masters and the very institution of slavery. Holt Parker refers to both 6.8.1 and 6.8.5 as servile ‘proof(s) of loyalty’.Footnote 40 Parker argues that stories of this kind were disseminated within the Roman community because they both suggested that masters were worthy of honour and provided an example of obedience for slaves.Footnote 41 Such stories can be identified in other sources: Pythias, the slave of Octavia, famously not only protected her mistress's honour but also insulted that of her interrogators (Cass. Dio 62.13.4), and, under Caligula, a freedwoman refused to give evidence against her (guilty) patron under torture and was rewarded with 800,000 HS (Suet. Cal. 16.4). In the Facta et Dicta Memorabilia, however, there is room to look beyond this framework, because exempla are also provided of ordinary slaves resisting torture when it is their own conduct, not that of their masters, that is in question.
According to the intellectual framework of the Greek and Roman world, there were good reasons for the judicial torture of slaves. Page DuBois in Torture and Truth describes the Greek idea that slaves could not be trusted to tell the truth; that there needed to be a basanos, a testing of the physical body that holds the truth in order for their evidence to be accepted as ‘true coin’.Footnote 42 Both she and Edward Peters have commented that slaves had no legal face or dignitas to lose through perjury and so they needed other, more immediate, incentives to tell the truth.Footnote 43 Thus, the slaves were interrogated using a variety of techniques that have already been mentioned: the eculeus (rack), lamminae (hot plates) and uerbera (beatings), in order to ensure the validity of their evidence. Paulus quotes Augustus in Justinian's Digest on the necessity of torture (48.18.1.23):
quaestiones neque semper in omni causa et persona desiderari debere arbitror, et, cum capitalia et atrociora maleficia non aliter explorari et inuestigari possunt quam per seruorum quaestiones, efficacissimas eas esse ad requirendam ueritatem existimo et habendas censeo.
I do not think that interrogations under torture ought to be requested in every case and person; but when capital or more serious crimes cannot be explored and investigated in any other way than by the torturing of slaves, then I think that those [interrogations] are the most effective means of seeking out the truth and I hold that they should be conducted.
This passage accepts and appreciates the role of servile torture in the judicial system, but it also introduces a note of caution. Augustus recognizes that torture is not appropriate in all situations but is necessary in some. De Quaestionibus actually opens with an explicit caueat from the diuus Augustus that torture should be treated as an element of a case—not the whole case (48.18.1):
et non esse a tormentis incipiendum et diuus Augustus constituit neque adeo fidem quaestioni adhibendam …
The deified Augustus laid down that one should not begin with the application of pain, and that reliance should not be placed entirely on torture …
Augustus’ remarks at the beginning of the Imperial period reinforce that, despite the Romans’ recognition of the fallibility of judicial torture as a means of revealing the truth, they accepted torture as an interrogation technique for servile suspects and witnesses. In the Digest, the tension between acceptance and caution is articulated by Ulpian:
It is stated in constitutions that reliance should not always be placed on torture—but not never, either [sic]; for it is a chancy and risky business and one which may be deceptive. For there are a number of people who, by their endurance or their toughness under torture, are so contemptuous of it that the truth can in no way be squeezed out of them. Others have so little endurance that they would rather tell any kind of lie than suffer torture; so it happens that they confess in various ways, incriminating not only themselves but others also.Footnote 44
Valerius Maximus’ chapter De Quaestionibus (8.4) could serve—at first glance—simply as a collection of illustrative examples of these limitations of torture. If, however, we look at this chapter not in isolation but instead view the Facta et Dicta as a unified artistic work and situate 8.4 in the context of Valerius’ work as a whole, it seems that Valerius is making a stronger point: torture does not work. This is all the more striking, as Valerius, who, as has been noted by Maslakov and Bloomer, is capable of considerable inconsistency in his depiction of individuals or events, here is consistent not only within chapter 8.4 but wherever torture is described in the work as a whole.Footnote 45
Valerius Maximus’ De Quaestionibus (8.4) is positioned in the midst of a series of chapters on judicial matters and it opens, as is often the case for Valerius, with a preface that outlines his focus in the following material:
atque ut omnes iudiciorum numeros exsequamur, quaestiones quibus aut creditum non est aut temere habita fides est, referamus.
And so, in order that we follow up all categories of judicial investigations, we will discuss interrogations, both those that were not believed and those in which trust was too quickly put.
Straightaway, Valerius underlines the fallibility of torture and in doing so he identifies the limitations of torture as a technique for establishing truth not in the fallible reactions of those being tortured, as Ulpian was to do (see above), but in the fallible judgement of those assessing the information gained from interrogations. The interrogations and, implicitly, the objects of interrogation are doubted or believed rashly by those conducting the interrogation (creditum est … habita fides est). Valerius lays the blame with those who interpret the testimony resulting from torture, whereas Ulpian sees the fault as lying with the victim who skews the results by despising (contemnere) torture through sheer duritia or prefering to lie (mentiri … uelint) as a result of their impatientia. Ulpian thus suggests that truth can be forced out of difficult witnesses with sufficient effort (ut exprimi eis ueritas … possit); for Valerius, there is no guarantee that torture will produce truth, or, if truth is produced, that those in charge of the interrogations will be able to recognize it. This immediately changes the position of the objects of torture: they are individuals capable of being wronged, rather than inherently unsound figures who need to be disciplined into honesty.
After the preface, 8.4 opens with a story found nowhere else; it tells of Alexander (the slave of Marcus Agrius) who, when tortured on the charge of having killed another slave belonging to Aelius Fannius, asserts his guilt constantissime:
M. Agri argentarii seruus Alexander A. Fanni seruum occidisse insimulatus est, eoque nomine tortus a domino admisisse id facinus constantissime adseuerauit. itaque Fannio deditus supplicio est adfectus. paruulo deinde tempore interiecto, ille cuius de nece creditum erat domum rediit.
Alexander, the slave of Marcus Agrius the banker, was charged with having killed the slave of Aelius Fannius and, tortured on this account by his master, he asserted very steadfastly that he had committed that crime. And so, he was handed over to Fannius and suffered punishment. Then, after a little time had passed, that man who was believed to be dead returned home.
Shackleton Bailey takes issue with Valerius at this point. In his 2000 Loeb translation he includes the following note:‘The facts are evidently garbled. A man might confess under torture to a crime he had not committed, but not constantissime.’Footnote 46 Shackleton Bailey refers the reader to his own article of 1996 in which he suggested: ‘Perhaps Valerius misunderstood his source.’Footnote 47 This is an example of an unfortunate tendency amongst scholars to assume that anything uncomfortable in the text is a mistake on Valerius’ part.Footnote 48 There are a number of possible explanations for Alexander's false confession: the previously cited extract from Ulpian points to the risk that fear of torture can result in misinformation (48.18.1.23). Ulpian also includes an example in the Digest of a slave who confessed to a murder in order to escape his master.Footnote 49 Given that the slave did confess constantissime, it can perhaps be assumed that the temeritas of the interrogators lay in proceeding with a lack of other evidence—a process that the Digest warns against.Footnote 50 Finally, as Valerius was much more familiar with the process of judicial torture than we can be today and he did not see such a repeated false confession as impossible, it seems contrary to argue that we are better judges. Nor is Valerius’ choice of language accidental or casual, as we shall see if we trust that he knows what he is doing in this exemplum and read it within the wider structure of the work.
If we do take Valerius at face value, he presents us with a named slave who is capable of maintaining his position constantissime and who, for his own reasons, chooses to confess falsely and accept punishment, a positive result for the interrogators and judiciary which is subsequently proved to be a travesty of justice when the alleged victim returns home safe and sound. Valerius finishes the exemplum by leaving the bald statement of this event exposed without comment.
At 8.4.2 Valerius presents the first of two exempla representing the other kind of faulty interrogation foreshadowed in the preface: quaestiones that were not believed. Both 8.4.2 and 8.4.3 depict the repeated torture of slaves who refuse to confess. The first exemplum concerns the slave of Publius Atinius; this slave is tortured as a suspect in the murder of an eques called Gaius Flavius:
contra P. Atini seruus Alexander, cum in suspicionem C. Flaui equitis Romani occisi uenisset, sexiens tortus pernegauit ei se culpae adfinem fuisse, sed perinde atque confessus et a iudicibus damnatus et a L. Calpurnio triumuiro in crucem actus est.
In contrast, Alexander, the slave of Publius Atinius, when he became a suspect in the killing of Gaius Flavius, a Roman eques, was tortured six times and firmly denied that he was party to this crime, but just as if he had confessed he was condemned by the judges and was crucifed by Lucius Calpurnius, the triumvir.
Ulpian would presumably regard this as a case in which the individual being tortured needed to be pressed harder to reveal the truth and it would be easy to rewrite this as an exemplum focussing on the stubbornness of the dishonest slave whose deceit was penetrated by the Roman justice system. Valerius does not do this; instead, he underlines the disconnection between the results obtained by six repetitions of torture and the final judgment: sed perinde atque confessus. Footnote 51 Valerius trusts the evidence of the slave; he classifies this as a quaestio with a flawed result in a chapter devoted to quaestiones with flawed results and this idea is underlined even more strongly in the final exemplum of the chapter.
At 8.4.3, Philippus, the slave of a Fulvius Flaccus, is tortured as a witness on charges against his master (the only slave in this chapter not to be a suspect in his own right), yet he speaks no word that endangers Flaccus:
item Fuluio Flacco causam dicente, Philippus seruus eius, in quo tota quaestio nitebatur, octiens tortus nullum omnino uerbum quo dominus perstringeretur emisit, et tamen reus damnatus est, cum certius argumentum innocentiae unus octiens tortus exhiberet quam octo semel torti praebuissent.
Likewise, when Fulvius Flaccus was defending a charge, his slave Philippus, on whom the entire prosecution depended, tortured eight times let slip not one word at all by which his master could be reproved and nevertheless the defendant was condemned, although one man tortured eight times presented a sounder proof of innocence than eight men each tortured once would have provided.
Here Valerius explicitly intrudes his own judgement into the narrative and, by guiding the response of the reader as witness to torture, controls the message conveyed by the torture itself.Footnote 52 Valerius depicts the response of the court to their own processes as ludicrous by reducing torture to a matter of arithmetic—creating a framework in which interrogations can be balanced in a ledger of quality versus quantity.
The vocabulary of the final exemplum of 8.4 reinforces the ineffectual, hopeless repetition of the slave's evidence with its own marked repetition.Footnote 53 In this exemplum, Valerius uses the same basic structure three times—a structure already familiar from the other accounts of torture we have examined. As Philippus is interrogated, he is represented by the perfect participle of torquere and is the subject of the active verb emittere. Valerius goes on to describe an unus tortus who is the subject of exhibere and then octo torti who are the subject of praebere. This certainly provides a neatly balanced sententia to conclude both the exemplum and the chapter, but the repetition is also representative of the chapter as a whole. The perfect participle of torquere is used five times in the chapter: once each in 8.4.1 and 8.4.2 and three times in 8.4.3. In every instance, Valerius uses the perfect participle in the nominative case. At 8.4.1, Alexander's interrogation is described with tortus a domino admisisse id facinus constantissime adseuerauit. And at 8.4.2 the trial of the unnamed slave of Publius Atinius is conveyed with sexiens tortus pernegauit ei se culpae adfinem fuisse. The focus is very clearly upon the individual being tortured and, by using the participle form for the experience of torture, Valerius is able to make the victim the subject of the verb in each exemplum at the very point at which they should be at their most powerless. Valerius shows the slaves resisting the torturers, fighting back in a way that is not ultimately successful but allows their story to survive as a record of the failure of torture both to elicit truth and to recognize truth when it is elicited—the experience of being tortured here exposes the weakness of the system, not the weakness of the victims. In the first exemplum of the chapter, Alexander actually makes fools of his interrogators, albeit at enormous personal cost. The neat solution to a murder mystery is undermined because the slave makes a decision to give false evidence constantissime and is able to convince his interrogators.
The use of constantissime that bothered Shackleton Bailey links Alexander back to the barbarus seruus of 3.3.ext.7; he too maintains his position against the torturers constantissime—in his case this means that he smiles throughout his torture; in Alexander's case, he confesses repeatedly to a crime he did not commit. This striking superlative is used by Valerius only four times; twice in these two cases where slaves withstand torture, once to describe the steadfast defence of Rome by the people of Tusculum in the fifth century, which was rewarded with voluntary military aid by the people of Rome in the chapter De Gratis (5.2.2), and once to describe the suicide of Cato the Younger at Utica (3.2.14):
tui quoque clarissimi excessus, Cato, Vtica monumentum est, in qua ex fortissimis uolneribus tuis plus gloriae quam sanguinis manauit: si quidem constantissime in gladium incumbendo magnum hominibus documentum dedisti quanto potior esse debeat probis dignitas sine uita quam uita sine dignitate.
Utica is the memorial of your similarly outstanding exit, Cato, where from your most brave wounds more glory than blood flowed: since you gave a great example to humankind by falling on your sword most steadfastly: how much more preferable dignity without life ought to be than life without dignity to honest men.
For the tortured slaves at 3.3.ext.7 and 8.4.1, as for Cato the Younger, there is something at stake more important than their own lives; there is no suggestion that Alexander confesses to the crime as a result of his fear or impatientia in the exemplum. The really frustrating thing about Alexander is that we simply do not know what was at stake for him: he resists interrogation some two thousand years on. Once again, Valerius’ willingness to measure the acts of slaves and free men on the same scale and his uniform trust in human integrity are remarkable.Footnote 54
Putting torture in the Facta et Dicta Memorabilia to the test necessarily leads us to put Valerius’ creation to the test and the results of this investigation demonstrate just how much there is still to learn from the Facta et Dicta. Valerius, often lambasted for his unoriginal parochial outlook, presents two powerful, coherent and hardly commonplace ideas in his material on torture. First, virtue and courage are accessible to all people, irrespective of their ethnic background or status. Valerius employs the same language and holds them to the same standard: a barbarian slave can demonstrate the same resolution and freedom as a high-status politician from Rome. Second, perhaps more radically, this study of Valerius Maximus shows that at least one author writing under the Emperor Tiberius (whose reign has been seen as the beginning of a dramatic expansion of the applicability of judicial torture)Footnote 55 considered interrogation by torture, even judicial torture carried out on slaves at Rome as a matter of long tradition, ineffective. Torture cannot uncover truth and it cannot discriminate between truth and lies because individuals from all backgrounds have the power to resist it. This same power means that torture is no more effective as a tool of terror than it is a means of fighting it. To use torture is to invite your victims to enter a contest for authority and, according to Valerius Maximus, the victim, whatever their status, always wins.
