No Comment — August 15, 2007, 12:25 pm

John Donne and the Outlawing of Torture

Recently I asked a clerical friend whether, considering the persistence of torture as a moral issue, he had thought of giving a sermon on the subject? He looked very uncomfortable and responded saying that his congregation was bipartisan and that he would be loathe to introduce a political issue as a sermon topic. It would fragment the congregation, he thought. Really?

I reject the notion that torture is a political issue of any sort. It is a great moral issue. And when those who have a clerical vocation fail to understand it and address it in those terms, they do their flock and themselves a great disservice.

Consider this John Donne sermon of 1625. It was delivered as his Easter Sunday sermon, which is important. Then as now, the Easter service drew the biggest crowd of the year. The Easter sermon was the minister’s minute in the spotlight—the moment when he would reach his greatest audience and make his reputation. And we know from John Donne’s correspondence, he was concerned about another audience: the king, his entourage and the courts. When Donne rose to deliver this sermon, torture was a heated “political” issue in England. Under the Stuart monarchs, the use of torture was viewed as a royal prerogative (how little things change). It was administered by judges, particularly by the national security court of seventeenth century England, the so-called Court of Star Chamber. John H. Langbein’s important book, Torture and the Law of Proof gives us very clear guidance into how torture was prescribed and used.

Over a series of centuries, the genius of the English law had been steadily to restrict and limit the use of torture, until at this point, under King James, it was controlled by the king’s judges and limited in practice through a series of special writs. Which is to say, legally it was far more constrained than it is today under an Executive Order issued by King James’s understudy in allegedly Divine Right governance, George W. Bush.

Donne delivered a direct blow against this system, the use to which it was put, and the suffering it caused. He makes no equivocations. And in the end he delivers his blows against even the king’s judges who administer the system. No one viewed Donne as a “political figure.” Indeed, owing to his Catholic background and sympathies, he eschewed court politics. Nor in the end was there anything “political” about the question of torture—it was an issue of ethics and of faith.

Donne’s resolve is strong. He cites and relies on two classical authorities. And whereas they muddle and equivocate, he does not. St. Augustine, writing in book nineteen of the City of God said that “torture is indeed a thing to be lamented, and, if that were possible, to be watered with a fountain of tears.” But what follows is arguably the darkest and most ethically dubious moment in the entire work. Augustine pulls back from a condemnation of torture, accepting it as a part of man’s barbarity, and accepting even that a person might be forced to torture, and should not be held to have done wrong for it. Many centuries would pass before the Roman Church recognized the error in Augustine’s reasoning. Donne also cites Ulpian, the famous author of the civil law commentaries from the third century, who described the use of torture in great detail, and its evolution in the Roman legal system. Ulpian reminds us that torture began as a process authorized for use only against slaves, then it was applied to non-Roman citizens, and finally it applied to citizens as well. (How the past echoes even in today’s newspapers, in which we learn of the use of torture against Jose Padilla, a U.S. citizen). In the end, Ulpian rejected torture, though his argument is morally indifferent. “Torture is a difficult and deceptive thing for the strong will resist and the weak will say anything to end the pain.” The law, Ulpian argued, must be a pursuit of the truth. Torture always leads into a cul de sac. Yet you would not think from hearing Donne that either of these authors had even a second’s hesitation in condemning torture. Certainly Donne does not.

Donne points to the ultimate irony of the use of torture, not to punish the guilty, but as a tool to extract information—when it is well established that doesn’t serve that end. He notes the immorality of this practice. John Donne was the most important clerical voice in England in his day. His opinion carried weight. Only three years after this sermon, following the assassination of the Duke of Buckingham, the lawyers and judges of England assembled in the Inns of Court in London to consider a special question put to them by the king. Was the practice of torture to be permitted by the common law?

And the judges met, deliberated and declared “upon their sacred honour, and the honour of England” that the answer was “no.” That marked the end of legalized torture in the English-speaking world… until the arrival of George W. Bush. And what hand did John Donne and his sermon have in this important moment in history? The answer is plain enough. And John Donne can stand as a solid model for men and women of faith today–to have courage, stand for their convictions, and not be cowed by the hollow charge of “politics.”

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