TORTURE IN ENGLAND.[17]
In the reign of King Henry the Sixth, theRackorBrake, was placed in the Tower of London, by the Duke of Exeter, when he and the Earl of Suffolk had formed the design of introducing the Civil Law into England. It was called “Exeter’s daughter,” and remained afterwards in the Tower, “where it was occasionally used as anEngine of State, more than once in thereign of Elizabeth.”
Though the use of the Rack does not appear to have been known in this country until the26thyear of Henry the Sixth, and though it was never authorized by the law, yet to borrow the expression of Mr. Justice Blackstone, it was occasionally used as an “Engine of State,” to extort confession from State Prisoners confined in the Tower, from the time of its introduction, until finally laid aside in consequence of the decision of the judges in Felton’s case. One Hawkins was tortured[18]in the reign of Henry the Sixth; and the case of Anne Askew,[19]in that ofHenry the Eighth,[20]cannot escape the recollection of every reader of English history. The Lord Chancellor Wriothesely (I blush for the honour and humanity of an English Judge while I write his name) went to the Tower to take her examination, and upon the Lieutenant’s refusing to draw the cords tighter,drew them himselftill every limb was dislocated, and her body nearly torn asunder. In Mary’s reign several persons were racked in order to extort confessions, which was upon account of Sir Thomas Wyat’s rebellion. And Barrington mentions that in Oldmixon’s History of England (p. 284,) one Simpson is said to have been tortured in 1558, and a confession extorted.
In the beginning of the reign of Elizabeth,[21]theRack was used upon offenders against the State, and among others, upon Francis Throgmorton; in 1571, upon Charles Baillie an attendant upon the Bishop of Ross, Mary’s ambassador, and upon Banastre, one of the Duke of Norfolk’s servants; and Barker, another of his servants was brought to confess by extreme fear of it. In 1581, Campion, the Jesuit, was put upon the rack,[22]and in 1585, Thomas Morgan writes to the Queen of Scots, that he has heard D. Atslow was racked in the Tower, twice about the Earl of Arundel. This is the last instance of the actual application of torture to extort confession.
For the greater part of this reign the application of torture in the examination of State offenders seems to have been in common use, and its legality not disputed. Mr. Daines Barrington says,[23]that among the manuscript papers of Lord Ellesmere, is a copy of instructions to him, as Lord President of the Marches, to use the torture on the taking of some examinations at Ludlow; and Sir Edward Coke himself,[24]in the year 1600, (the43dof Elizabeth’s reign) then being Attorney General, at the trials of the Earls of Essex and Southampton, boasted of the clemency of theQueen, because, though the rebellious attempts were so exceedingly heinous, yet out of her princely mercy “no person was racked, tortured, or pressed to speak any thing further than of their own accord.” And in the Countess of Shrewsbury’s case (10 James1st) when Sir Edward was Chief Justice, in enumerating the privileges of the nobility, he mentions as one, that their bodies were not subject to torturein causa criminis læsæ majestatis. Barrington justly observes[25]there was a regular establishment for torture, for at his trial,[26]in the first year of James the first, Sir Walter Raleigh stated that Kemish had been threatened with the rack, and the keeper of the instrument sent for. Sir William Wade, who, with the Solicitor General had taken his examination, denied it, but admitted they had told him he deserved it, and Lord Howard declared, “Kemish was never on the rack,the king gave charge that no rigour should be used.”
Barrington mentions[27]that Sir John Hayward, the historian, was threatened with the rack, which Dr. Granger confirms; and the former also remarks that it is stated in King James’s works, that the rack was shewn to Guy Faukes when under examination.
Down to this period we do not find the legality of the practice questioned, though it has been said by high authority, as will be stated presently, that some doubts had been suggested to Queen Elizabeth. State Prisoners were confined usually in the Tower, and commissioners, attended by the law officers of the crown, were sent to examine them, who applied the rack at their own discretion, or according to the order of the privy council, or the king’s, without any objection being made to their authority.
In the third year of King Charles the first, Felton was threatened with the rack by the Earl of Dorset in the Tower, and Laud, then bishop of London, repeated the threats in council, but the king insisted upon the judges being consulted as to the legality of the application, and they being unanimously of opinion that it was illegal, it was never attempted afterwards. The answer which Felton made to Laud’s threats, is well worthy of attention; when Laud told him “if he would not confess he must go to the rack,” he replied “if it must be so, he could not tell whom he might nominate in the extremity of torture, and if what he should say then was to go for truth, he could not tell whether his Lordship (meaning the bishop of London) or which of their Lordships he might name, for torture might draw unexpected things from him.”
In the year 1680 (32 Charles2d) ElizabethCollier was tried at the Old Bailey,[28]before Mr. Baron Weston, for the publication of a libel, in which many circumstances were related for the purpose of inducing a belief that Prance, when a prisoner in Newgate, had been tortured there, and he was produced to prove the falsehood of the publication. The learned judge in summing up the evidence to the jury said, “But you must first know the laws of the land do not admit a torture, and since Queen Elizabeth’s time there hath been nothing of that kind ever done. The truth is indeed, in the twentieth year of her reign, Campion was just stretched upon the rack, but yet not so but he could walk; but when she was told it was against the law of the land to have any of her subjects racked (though that was an extraordinary case, a world of seminaries being sent over to contrive her death, and she lived in continual danger) yet it was never done after to any one, neither in her reign, who reigned twenty-five years, nor in king James’s reign, who reigned twenty-two years after, nor in king Charles the first’s reign, who reigned twenty-four years after; andGodin Heaven knows there hath been no such thing offered in this king’s reign; for I think we may say we have lived under as lawful and merciful a government as any people whatsoever, and have as little blood shed, and sanguinary executions as any nation under heaven.”
The learned judge may have been mistaken when stating Campion to be the last person racked, for in Murden’s state papers, one Atslow, as before observed, is mentioned to have been tortured four years afterwards. Mr. Baron Weston states that upon a suggestion made to Queen Elizabeth of the illegality of the practice, it was discontinued in her reign, and thus we may account for Campion being racked with so little severity, as to be able to walk afterwards, and to manage the conferences with protestant doctors during his confinement in prison.
In the Jurisprudence of the Romans the deceitful and dangerous experiment of the criminalquæstion, as it is emphatically styled, was admitted, rather than approved. The Roman government applied this sanguinary mode of examination only to servile bodies, whose sufferings were seldom weighed by those haughty Republicans in the scale of justice or humanity; but they would never consent to violate the sacred person of a citizen, till they possessed the clearest evidence of his guilt.[29]The annals of tyranny, from the reign of Tiberius to that of Domitian, circumstantially relate the executions of many innocent victims; but as long as the faintest remembrance was kept alive of thenational freedom and honour, the last hours of a Roman were secure from the danger of ignominious torture. The conduct of the provincial magistrates was not, however, regulated by the practice of the city, or the strict maxims of the Civilians. They found the use of torture established not only among the slaves of oriental despotism, but among the Macedonians, who obeyed a limited monarch; among the Rhodians, who flourished by the liberty of commerce; and even among the sage Athenians, who had asserted and adorned the dignity of human nature.[30]The acquiescence of the people in the provinces encouraged their governors to acquire or perhaps to usurp, a discretionary power of employing the Rack, to extort from vagrants or plebeian criminals the confession of their guilt, till they insensibly proceeded to confound the distinctions of rank, and to disregard the privileges of Roman citizens. The apprehensions of the subjects urged them to solicit, and the interest of the Sovereign engaged him to grant, avariety of special exemptions, which tacitly allowed, and even authorized, the general use of torture. They protected all persons of illustrious or honourable rank, bishops and their presbyters, professors of the liberal arts, soldiers and their families, municipal officers, and their posterity to the third generation, and all children under the age of puberty. But a fatal maxim was introduced into the new jurisprudence of the Empire, that in the case of treason, which included every offence that the subtlety of lawyers could derive from anhostile intentiontowards the prince or republic, all privileges were suspended and all conditions were reduced to the same ignominious level. As the safety of the Emperor was avowedly preferred to every consideration of justice or humanity, the dignity of age, and the tenderness of youth were alike exposed to the most cruel tortures; and the terrors of a malicious information, which might select them as the accomplices, or even as the witnesses, perhaps, of an imaginary crime, perpetually hung over the heads of the principal citizens of the Roman world.[31]