David Jardine Sir Nicholas Throckmorton.

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terials for a new charge were compounded, or till it
pleased the caprice of government to discharge him<
Such was the law and practice in the time of Queen
Elizabeth ; let us now look at the law and practice in
the time of George III.

In modern times, a person imprisoned on a charge
of treason is entitled immediately to a copy of the
warrant of commitment, which the gaoler is bound
to deliver to him under a very heavy penalty ; friends
and advisers are admitted to consult with him at all
reasonable times ; if upon the warrant of his com«
mitment or otherwise he has reason to believe, or is
advised that his imprisonment is illegal, or that he is
entitled to bail, he may demand to be brought per-*-
sonally before some court of superior jurisdiction ;
and after being heard publicly and openly, he will be
either bailed, remanded, or discharged ; he must be
brought to trial within a reasonable time, and if not
indicted in the course of the next term or sessions
after his commitment, he is entitled to be bailed;
and if not indicted and tried at the second term or
sessions, he may be discharged. There must be an

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interTiil of fifteen daya between his ammignmenl
and trial A copy of the indictment, together with a
list of the witDesses to appear against him, and also
of the jury by whom he is to be tried, with a full
description of each person, la order that he may
Imow how to direct his challenges, must be delivered
to him ten days at least before his trial ; counsel are
assigned to him by th<i court upon his own nomina<<
tion, who are permitted to assist him in every part of
the trial by examining witnesses and addressing the
jury in his behalf; there must be two witnesses ta
support every article of the treason charged against
bim ; all the evidence is given in open comrt, and the
prisoner or his counsel are allowed to eross^eauimine
the witnesses for the prosecution ; no questions are
asked of the prisoner during the whole of the proh
ceeding as to the facts c^ the case % he may call as
many witnesses as he pleases, who are eiamined
upon oath, and he has the same means of compelling
their attendance as the Crown ; on a verdiet of ac<*
quittaU he is instantly discharged, and the jury are
liever questioned for their conduct

When the two cases are thus placed in oppoaitioBy
it is manifest that a very great improvement has
taken place in the administration of criminal justiee
and the liberty of the subject : and upon a nearet
examination, the advantages which we possess in
modern times will be found to consist not se much in
the declaration of abstract rights and liberties, as
in the careful provision of means by which those
rights and liberties may be rendered practically avail-
able to tl e individual whenever the band of unlawful
power may lie heavily upon him.

In the reign of Queen Elizabeth an Englishman
not in a state of villeinage had, by the constitutional
law of the land> an unquestionable right to personal
liberty; but the ivieanSi h^ possiessed of vindicating

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his freedom and escaping from the grasp of a power-*
ful adversary were very slender and insufficient. He
might indeed have his action or indictment founded
on Magna Charta, or he might recover damages for
false imprisonment, or he might possibly be entitled to
a writ de odio et atia or a writ de homine replegiando*.
But the relief which such a person required was in-
stant deliverance ; he was bound hand and foot by an
enemy whom he could not resist, and who had the in-
clination and the power to crush him entirely ; it was
idle, therefore, to tell him that he would hereafter be
entitled by law to punish his oppressor by an indict-
ment, or recover compensation for his wrongs by an
action ; and as to the other remedies alluded to, the
mere mention of their names shows how utterly futile
they were to a state prisoner ; he would in all pro-
bability never have heard of them ; or, if he had, it
would have been altogether impossible to have availed
himself of them without professional assistance or a
communication with his friends. On the other hand,
in the present day, a prisoner is carefully instructed
in the mode by which he may make his voice heard
beyond the walls of his prison ; he is not only re-
minded of his natural strength, but the weapons of
defence are placed in his hands, and he is taught
how to wield them ; in the language of Mr. Erskine,
in his defence of Hatfield, "he is covered all over
with the armour of the law.'*

* The writ de odio et atia was directed to the Sheriff, and cora-
inanded him to inquire whether a prisoner charged with murder,
was committed upon just cause of suspicion, or merely propter
odium et atiam, for hatred and ill-will ; and if, upon the inquisi-
tion, no good cause of suspicion appeared, another writ issued to
the Sheriff to admit him to bail. The writ de homine replegiando
was to replevy a man out of prison, upon giving security to the
Sheriff for his appearance, to answer any charge against him.
** But this writ," says Mr. Justice Blackstone, " is guarded with
80 many exceptions, that it is not an effectual remedy in D.umerott9
instances; especially ^vhere the Crown is concerned.'*



The fuequent interference of the prerogfative of the
Crown with the undoubted principles of the common
law, especially in state prosecutions, is a remarkable
feature in the history of the administration of justice
in this country in ancient times. This may be well
illustrated by the instance of Torture. The practice
of obtaining confesi|ions or evidence by means of
torture — a practice as absurd as it is cruel and unjust
— has been always considered by writers on jurispru-
dence, both ancient and modem, as totally repugnant
to the fundamental laws of England. Fortescue, who
-wrote his book on the laws of England so early as the
reign of Henry VI., mentions the absence of torture
as one of the advantages of the English law over
the ciyil law, and the laws of most other nations *•
liord Coke refers to this passage of Fortescue, and
declares that the infliction of torture is against
Magna Charta, and the principles of the constitu-
tion; and says, that "there is no one opinion in
our books or judicial records for the maintenance of
itf." Sir Thomas Smith, who was a philosopher
and a man of literature, as well as a statesman and
lawyer, in his book on the English Commonwealth,
written in the early part of Queen Elizabeth's reign,
says J, " It is against the law of England to torture,
for the purpose of eliciting a confession of guilt;
the practice savours too much of slavery for a free
people. It is natural to an Englishman to despise
death, but he cannot endure torture; hence the
lightest kind of torture is more abhorrent to our
people than death itself, for in no country do male-
factors go to execution more intrepidly than in Eng-

* Fortescue de laudibus Legum Anglise, cap. 22. There were
several ancient Translations of Portescue's Tract ; the most acces*
sible to an English reader is that of 1775, which has lately been
re-published, with som« valuable Notes; by Mr. Amos.
t3lnst.9dt ;3ookii. p. 118.

you h c .



land." It is quite dear, upon these and many other
authorities which might be mentioned, that by law
the apphcation of torture was universally admitted
to be unjustifiable ; but what has been the practice ?
There is no period of the history of England an-
terior to the Commonwealth, in which torture has
not been used as a matter of course in all state
prosecutions, at the mere discretion of the Privy
Council, and uncontrolled by any law besides the
will of the Sovereign. With the strong language of
the authorities above cited in his mind, the reader
may possibly be startled at this assertion ; it will*
therefore, be proper to adduce some evidence ta
prove its truth.

In 1468, not many years ailer Fortescue wrote.
Sir Thomas Coke, Lord-Mayor of London, was
tried for high treason, and found guilty of mis-
prision of treason, upon the single testimony of one
Hawkins, given under torture. Hawkins himself
was convicted of treason, upon his own confes-
sion on the rack, and executed *. In 1571, the Duke
of !^orfolk was found guilty of high treason, chiefly
upon the evidence of one of his secretaries, who was
examined under torture ; and it is a singular coinci-
dence, that the warrant of Queen Elizabeth, for
applying the rack in this case, was directed to Sir
Thomas Smith, the same individual whose work ist
above cited, and was executed by him within tea
years after the work was written, in which he gives,
his testimony so forcibly and justly against the prac-
tice of torture f. It is due, however, to the character
of this humane and excellent man, to state his own
expressions of disgust at being employed on such a
commission. In a letter to Lord Burleigh, he
" craves his revocation from this unpleasant and

• FuUer's Worthies, p. 317. Hoilinfsked, p. e7Q.
t £Uia'» Letters^ vol, ii, p, 260.

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painfiil loiL I Msare you/' he says, ** I would not
wish to be one of Homer's ^ods, if I thought I should
be Minos, iBacus, or Rhadamanthus ; I had rather
he one of the least shades in the Elysian Fields *."
There were many instances of torture in the reign
of Elizabeth, sometimes applied on very slight occa-
sions. Lord Bacon relates of her, that once, when
she could not be persuaded that a book, containing
treasonable matter, was really written by the person
whose name it bore, she said, with great indignation*
that ** she would have him racked, to produce his au*
Ihor/' Bacon replied, '^ Nay, madam, he is a doctor*
never rack his person, rack his style ; let him have pen,
ink, and paper, and help of books, and be enjoined
to continue his story, and I will undertake, by collat-
ing his styles, to judge whether he were the author t*"
On the trial of the Earls of Essex and Southampton*
Sir Edward Coke, commonly known as Lord Coke*
who was then Attorney-General, and whose strong
expressions on the subject are cited above, takes
occasion to extol the clemency of the Queen in
not applying the torture to the accomplices and
witnesses |. There is a curious paper in Somers's
Tracts §, said to be written by Lord Burleigh, in
which it is fully admitted that many state prisoners
were tortured by command of Elizabeth ; and it is
there said, by way of apoli^gy, that " Campion, the
Jesuit, was never so racked, but that he was presently
able to walk and write ;" and further, *' that there
was perpetual care had, and the Queen's servants, the
warders, whose office and act it was to handle the
rack, were ever by those that attended the examina-
tions specially charged to use it in as charitable
manner as such f thing might be." Well might the
editor observe, " this tender mercy sounds very

• Murdin's State Papers, p. 96. f Cabala, p. 81.

X 1 State Tri»ls, 1338, and post* i Vol. i. 209.

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cruel !" The same paper also admits the* treatment
of Alexander Briant, who, as Wood says, *' was tor-
mented with needles thrust into his nails, racked
also otherwise in such cruel sort, and specially pu-
nished for two whole days and nights with famine,
by which he was reduced to such extremities that he
ate the clay out of the walls of his prison, and drank
the droppings of the roof*." This torture by famine
is justified by Lord Burleigh, on the ground that
the prisoner refused to write on being commanded
so to do in the Queen's name, in order that his hand^
writing might be compared with certain traitorous
papers found in his possession.

In the reign of James I. the practice was still
continued ; and it is worthy of remark that in almost
every instancy of torture to be traced during this
period, the name of Sir Edward Coke, the lawyer
and patriot, who in his writings inveighs so strongly
against the practice, is found either as a Commis-
sioner to execute this barbarous process, or as a Privy-
Councillor to direct it. Two warrants from the
Privy Council, dated the 19th and 20th April, 1603,
before the King's arrival in London, for applying the
torture to one Philip May, are to be found in the
State-Paper Office ; one of which is directed to the
Lord Chief Justice, Sir John Popham, the Attorney-
General, Sir Edward Coke, and the Solicitor-Gene-
ral, Sir Thomas Fleming; and is signed by several
members of the Privy Council, and amongst others,
by Lord-Chancellor EUesmere, and the Archbishop
of Canterbury. There is no positive evidence that
Guy Fawkes was placed upon the rack, though it is
very probable that he was ; the King's warrant
for the torture, dated the 6th November, 1604, is still
preserved, concluding in these remarkable words:
" using the gentler torture first, et sic per gradm ad.
♦ Ath. Oxon. vol. i, p. 210.

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ima tendiiur*y and so God speed you in your good
work!" The comparison f of the several signatures
of Fawkes to the original depositions at the State-
Paper Office furnishes a very strong argument that he
actually suffered the torture. On his first examination
after his .apprehension he gave his name as John
Johnson, and the foUowiitg is a ftcrsimile copy of his
signature as subscribed to it ;


In an examination dated the 8th of November 1604,
he admits his name to be Giiido Fawkes, but con-
fesses nothing material ; and his signatures to this,
and several other depositions about the same time,
are written boldly and firmly, and apparently in his
usual hand-writing, thus :


But th^ last and fullest statement, dated the 10th
November, in which he declares his accomplices, and
Opens the whole conspiracy, is subscribed in a faint
and trembling hand ; the signature has obviously
the appearance of being written by a person in great
bodily agony ; the Christian name alone is completed,
and the pen appears to have fallen from the hand of

* " And thus by degrees we may proceed to extremities."
f This curious and interesting circumstance was first observed
by Mr. Lemon, the Deputy-Keeper of the State Papers ; and it is
\iiider his superintendence^ with the approbation of Lord Mel.
bourne and Mr. Hobhouse, that it is now for the first time pub-


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the writer while he was attempting to. form the initial
letter of his surname. The following is an exact
copy of the signature itself, and of the attestation by
Sir Edward Coke and the other Commissioners :

In 1614, Peacham, who was accused of high
treason for certain passages in a sermon written by
him, and found in his study, but never preached
or published, was examined upon interrogatories
" before torture, in torture, between torture, and after
torture," by a Commission, of which Sir Francis
Bacon was a member*. There is a warrant from the
Privy Council in 1620, still extant, by which Sir
Allen Apsley, the Lieutenant of the Tower, Sir Henry
Mountague, Lord Chief Justice of the King*s Bench,
and Sir Thomas Coventry, the King's Solicitor-^

• BacoQ*8 Worksj vol iii. p,258.

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General, are authorized' to examine one Peacock,
and to put him to the torture " either of the mana-
cles or the rack*." This warrant is signed both by
Lord-Chancellor Bacon and Sir Edward Coke ; and
in one of Bacon's letters to the King he recommends
the use of torture in this instance ; *'if/' says he,
"we cannot get to the bottom otherwise, it is fit Pea-
cock be put to torture : he deserveth it as well as
Peacham didf.*'

Charles I. was not more scrupulous than his pre-
decessors in the exercise of this obnoxious pseroga-
tive ; it appears, indeed, from the following corre*
spondence, extracted from the State-Paper Office,
that, with respect to his Irish subjects, he assumed
to exercise an almost absolute power of life and
death. In April, 1627, Lord Falkland, who was
at that time Lord-Deputy of Ireland, writes to Secre-
tary Conway (then Viscount Killultagh), stating,
that he had arrested two priests, whom he suspected
of traitorous designs; that in order to draw the
fiill truth from them, he was desirous of putting them
to the rack ; but, as his doing so to priests would
cause great scandal, he Avished for some warrant
from the Council. Lord Killultagh, in his answer,
dated the 30th May, 1627, commends the Lord
Deputy's diligence, and says, that ** as to the racking
of the priests, he has mentioned his scruples to the
King, who is of opinion that he may rack them, or
kill them, if he thinks proper," He further says,
that he has also mentioned tiie subject to the Coun-
cil, " who were all of one mind, that he might rack
the priests if he saw cause, and hang them if he
found reason."

* Arcbaeologiaj vol. x. p. 143. This Peacock was a minister
of the University of Cambridge, and was committed to the Tower
for pretending that he had infatuated the King's judgment by
sorcery. — Camd. Annal, Jac. i.

t Bacon'a Works, vol. iii. p. 576.

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In the year 1628, the Juds:es delivei'ed lin tinani-
moud opinion against the legality of torture, in the case
of Felton» who had stabbed the Duke of Buckingham.
The following account of the circumstances under
which this opinion was given, is taken from Rush-
worth r — " Afterwards Felton was called before the
Council, where he confessed much concerning iiis in-
ducement to the murder. The Council much pressed
him to confess who set him on to do such a bloody act,
and if the Puritans had no hand therein. He denied
they had, and so he did to the last, that no person
whatsoever knew anything of his intention or purpose
to kill the Duke ; that he revealed it to none living.
Doctor Laud, Bishop of London, being then at the
Council table, told him, if he would not confess he
must go to the rack. Felton 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 must 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.* After this
he was asked no more questions, but sent back t6 '
prison. The Council then fell into debate, whether,
by the law of the land, they could justify the putting
him to the rack? The King, being at the Council,
said, * Before any such thing be done, let the advice
of the Judges be had thereon, whether it be legal or
no.' And afterwards his Majesty propounded the
question to Sir J. RichHrdson, Lord Chief Justice of
the Common Pleas, to be propounded to all Justices,
viz. • Felton, now a prisoner in the Tower, having
confessed that he killed the Duke of Buckingham,
and said he was induced to this partly for private
displeasure, and partly by reason of a remonstrance
in Parliament, having also read some books which,
he said, defended that it was lawful to kill an enemy


to the republic ; the question therefore- is," whether
by the law he might not be racked^ and whether
there were any law against it? — for, said the King, if
it might be done by law, he would not use his pre-
rogative in this point' And having put this ques-
tion to the Lord Chief Justice, the King commanded
him to demand the resolutions of all the Judges.
And on the 14th of November, all the Judges being
assembled at Serjeant's Inn, in Fleet-street, agreed
in one, that he ought not by the law to be tortured
by the rack, for no such punishment is known or
allowed by our law." It is worthy of remark, that
several of the Judges who thus honourably delivered
their opinions in opposition to the strong personal
feelings of the King and his Council, concurred . a
few years afterwards in the odious judgment for the
Crown in the case of Ship-money ; and one of them.
Sir Henry Yelverton, in the reign of James I., was
a member of the Commission by which Peacham was
examined by the torture. Notwithstanding this for-
mal opinion there is no doubt that the practice con-
tinued during the whole reign of Charles I., as a war-
rant for applying the torture to one Archer, in 1640,
is to be seen at the State-Paper Office. This, how-
ever, appears to have been the last occasion on
which this odious practice was resorted to. There
is no trace of it during the Commonwealth ; and in
the reign of Charles II., where we might have ex-
pected to find it, there is not a single well-authen-
ticated instance of the application of the torture.

It would lead us into too wide a field to point out
the various considerations which suggest themselves
upon a review of this subject. The facts above col-
lected are, however, well worthy the attention of the
student of our constitutional history ; for the long
continuance, under the authority of the royal prero«

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f fl CBIimrAL TftlALI,

fftiive alone^ of a practice directly opposed to the
fundamental princij^es of reason, justice, and law,
condemned and denounced by the opinions of the
wisest lawyers and statesmen, at the very time that
tliey were compelled to act upon it, furnishes a most
remarkable instance of the existence, in former times,
of a power above the law, controllin|^and subverting
the law, and rendering its practical application alto-*
gether inconsistent with its theoretical excellence^.

« The following ftccoont of the kinds of torture chiefly ttn-
ployed in the Tower is taken from a note to the eighth volume of
Dr. Lingard's History.

1st. The rack was a large open frame of oak, raised three feet
from the ground. The prisoner was laid under it on his back on
the floor ; hie wrists and ancles were attached by cords to two
collars at the ends of the frame, these were moved by levers in
opposite directions, till the body rose to a level with the frame.
Questions were then put, and, if the answers did not prove sati»<
fkctory, the sufferer was stretched more and more till the bones
Started from their sockets.

2d. The scavenger's dangkter was a broad hoop of iron, so
called, consisting of two parts, fastened to each other by a hinge.
The prisoner was made to kneel on the pavement, and to con-
tract himself into as small a compass as he could. Then tlie exe-
cutioner, kneeling on his shoulders, and having introduced the
hoop under hts legs, compressed the victim close together, till he
was able to fasten the extremities over the small of the back.
The time allotted to this kind of torture was an hour and a half,
during which time it commonly happened that from excess of
compression the blood started from the nostrils ; sometimes, it
was believed, from the extremities of the hands and feet.

3d. Iron gauniletSy which could be contracted by the aid of
a screw. They served to compress the wrists, and to suspend the
prisoner in the air, from two distant points of a beam. He was
placed on three pieces of wood, piled one on the other, which
when his hands had been made fast, were successively with-
drawn from under his feet. " I felt," said F. Gerard, one of
the sufferers, '* the chief pain in my breast, belly, arms, and
hands. I thoueht that all the blood in my body had run into
my arms, and began to burst out of my finger ends. This was
a mistake ; but the arms swelled, till the gauntlets were buried
within the flesh. After being that euspended an hour, I fainted|

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The exeluskm of oral testimony on the trM of per-
sons charged with offences agiunst the state, formed
another instance in which the royal prerogative for-
merly marked out a peculiar line of proceedin(^
where the Ring was personally concerned, different
from the usual and acknowledged course oi the com*
mon law. It is extremely curious to trace the gra*
dual and almost imperceptible steps by which the
criminal law has been reformed in this respect* as
juster notions of the respective rights of the crown
and of the people have been introduced ; and this
gradual abolition of an oppressive and unjust prac*
tice is so remarkably exemplified in the total altera*
tion which was effected in little more than a century,
in the nature of the evidence adduced on State Pro*
secutions, that we shall need no apology for directing
the attention of the reader to the subject with some

Online LibraryDavid Jardine Sir Nicholas ThrockmortonCriminal trials ..., Volume 1 → online text (page 2 of 46)