«Iste Casus est Fortis et Durus». Malicious Intent and Fault in a Consilium de Tortura by Egidiolo Cavitelli († 1419)

Abstract

An unpublished consilium on the subject of torture by the Cremonese jurist Egidiolo Cavitelli († 1419) allows us to focus on the timing and content of the debate that developed in the legal doctrine of ius commune regarding the responsibility of the judge in the event of the death of the inquisitus subjected to torture ad eruendam
veritatem. The subject is dealt with on several occasions by leading jurists , among whom the names of Guido da Suzzara, Iacopo d’Arena, Alberto Gandino, Cino da Pistoia, Bartolo da Sassoferrato, Alberico da Rosciate and Baldo degli Ubaldi stand out. Central to this debate is the distinction between cases in which the death of the tortured person is
attributable to the fault of the investigator (including culpa lata) and those in which the event is of a malicious nature. For the majority of interpreters, only in the latter case must the perpetrator be punished with the edictual penalty, i.e. the death penalty provided for by the Lex Cornelia de sicariis. When, on the other hand, the responsibility
is of a culpable nature, while Guido da Suzzara favours a strict solution, most interpreters believe that the judge responsible for the death of the tortured person must be punished with a poena extraordinaria entrusted to the arbitrium iudicis. Alongside the perception
of malicious intent as qualitas delicti, relevant in the present debate appears to be the emergence of the sort of circular process that, in ius commune criminal thought, links the subjective elements of the crime to the assessment of the seriousness of the offense
and the commensuration of punishment (corporal or otherwise). A further element that characterises Egidiolo Cavitelli’s consilium is represented by the Cremona jurist’s recourse to the principle according to which the performance of an officium constitutes
a velamentum criminis, i.e. an element of attenuation or tout-court elimination of the agent’s criminal liability when he is the holder of a public officium. Relatively widespread in the doctrine of the Low Middle Ages, the principle was to be the subject of decisive criticism from the early 16th century onwards, driven by the new humanistic sensibilities.