Paradigm shift

In 1928, when Lytton Strachey wrote Elizabeth and Essex, the English-speaking world agreed that torture was an atrocity. When, therefore, Strachey narrated the complicity of Robert Devereux, earl of Essex, in the judicial torture of Queen Elizabeth’s personal physician, Ruy Lopez, a Portuguese Jew, Strachey had some explaining to do. Essex was the hero of Strachey’s book, and so Strachey had to persuade his readers at least to understand Essex’s complicity, even if he could not hope to persuade them to forgive it. In Strachey’s telling, Essex is a man of feeling. “One can understand, perhaps, the intellectuals and the politicians,” Strachey wrote, “but Essex! Generous, strong, in the flush of manhood, is it possible that he failed to realise that what he was doing was, to say the least of it, unfair?”

Today, of course, a mind accustomed to the idea of torture no longer seems archaic. It’s instead the need to explain such a mind that has become historical. As a curiosity, then, here’s Strachey’s attempt to explain the Renaissance mind to readers whose sensibility had been shaped by the Enlightenment:

The true principles of criminal jurisprudence have only come to be recognised, with gradually increasing completeness, during the last two centuries. . . . No human creature can ever hope to be truly just; but there are degrees in mortal fallibility, and for countless ages the justice of mankind was the sport of fear, folly, and superstition. In the England of Elizabeth there was a particular influence at work which, in certain crucial cases, turned the administration of justice into a mockery. It was virtually impossible for anyone accused of High Treason—the gravest offence known to the law—to be acquitted. The reason for this was plain; but it was a reason not of justice but expediency. Upon the life of Elizabeth hung the whole structure of the State. . . . Her own personal fearlessness added to the peril. She refused, she said, to mistrust the love of her subjects; she was singularly free of access; and she appeared in public with a totally inadequate guard. In such a situation, only one course of action seemed to be possible: every other consideration must be subordinated to the supreme necessity of preserving the Queen’s life. . . . It was futile to talk of justice; for justice involves, by its very nature, uncertainty; and the Government could take no risks. The old saw was reversed; it was better that ten innocent men should suffer than that one guilty man should escape. To arouse suspicion became in itself a crime.

Having explained why torture seemed plausible to Elizabethans, Strachey then explained why it was nonetheless dysfunctional and corrupting.

It was in the collection of evidence that the mingled atrocity and absurdity of the system became most obvious. Not only was the fabric of a case often built up on the allegations of the hired creatures of the Government, but the existence of the rack gave a preposterous twist to the words of every witness. Torture was constantly used; but whether, in any particular instance, it was used or not, the consequences were identical. The threat of it, the hint of it, the mere knowledge in the mind of a witness that it might at any moment be applied to him—those were differences merely of degree; always, the fatal compulsion was there, inextricably confusing truth and falsehood. What shred of credibility could adhere to testimony obtained in such circumstances—from a man, in prison, alone, suddenly confronted by a group of hostile and skilful examiners, plied with leading questions, and terrified by the imminent possibility of extreme physical pain? Who could disentangle among his statements the parts of veracity and fear, the desire to placate his questioners, the instinct to incriminate others, the impulse to avoid, by some random affirmation, the dislocation of an arm or a leg? Only one thing was plain about such evidence: it would always be possible to give to it whatever interpretation the prosecutors might desire. The Government could prove anything.

Strachey’s final insight concerned torture’s effect on the political judgment of its users.

It was, of course, an essential feature of the system that those who worked it should not have realised its implications. Torture was regarded as an unpleasant necessity; evidence obtained under it might possibly, in certain cases, be considered of dubious value; but no one dreamt that the judicial procedure of which it formed a part was necessarily without any value at all. . . . Judges, as well as prisoners, were victims of the rack.

It would take a lot of explaining, in other words, before our great-grandparents would be able to recognize the America we live in.