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non insitiando tributa plurimas in corpore vibices ostendat; et nulla tornientorum vis inveniri adhuc potuit, quæ obdurato illius tractûs latroni elicere potuit, ut nomen proprium dicat.''
This curious subject had engaged the attention of the late Sir Samuel Romilly, whose benevolent mind was always alive to inquiries in which the interests and happiness of his fellowcreatures were involved. At his death some MS. collections on the use of torture in England were found amongst his papers, and were communicated to Miss Aikin, who has made a judicious use of them in her Memoirs of the Court of King James the First. The authorities thus collected form an admirable supplement to the observations of Mr. Barrington, on which account we have thought it proper to insert them in the present article, together with such few illustrations as have casually occurred to ourselves. The whole will thus form a more complete collection of facts than can, perhaps, be met with elsewhere.
One of the first instances in which a question arose as to the use of torture in judicial cases, in this country, was on occasion of the proceedings against the Knights Templars. In a former volume we gave some account of the torments to which these unfortunate men were subjected in other parts of Europe. In England, the archbishop of York, during the examinations taken by him against the supposed offenders, was desirous of applying the rack; but suggested to several monasteries and divines the doubts he entertained whether he could have recourse to it, seeing that in this realm of England it had never been seen or heard of. He further desired their opinion, whether, if torture should be applied, it should be done by priests or laymen; and whether, if no person could be found in England to do the office, he might send for expert torturers from foreign parts. (Walter Hemingford, p. 256.). It may be added, that the archbishop was afterwards convinced of the innocence of the Templars, and directed many of the knights to be supported at his own expense, (Dugd. Monas. 1. 184.)
« The trial by rack," says Blackstone (4 Com. 326), “ is utterly unknown to the laws of England, though once, when the dukes of Exeter and Suffolk, and other ministers of Henry VI., had laid a design to introduce the civil law into this kingdom as the rule of government, for the beginning thereof they erected a rack of torture, which was called, in derision, the Duke of Exeter's Daughter, and still remains in the Tower of London.” In the reign of. Edward IV., however, an instance occurs of the judicial 'employment of the rack. Sir Thomas Cooke, who had been Lord Mayor of London, was arraigned of treason for lending money to Queen Margaret, and a witness was produced against him who had been examined on the rack (Fuller's Worthies, p. 317.) ' In the reign of Henry VIII. this instrument of torture was applied to spiritual purposes, and that too upon the person of an unfortunate woman. At the instigation of the respective Chancellors, Rich and Wriothesly, Anne Ascough, who was accused of heresy, was racked repeatedly after her condemnation, for the purpose of extracting evidence against some other court ladies of the same opinions.
* In the reign of Elizabeth, to the eternal disgrace of that queen, the rack became an active instrument of torture, and was employed chiefly against the Catholics. The commissioners for inquiring into treasons, and the members of the high-commission court, appear to have applied it at their will and pleasure; and a pamphlet was written under the eye of Burleigh, entitled “ A Declaration of the 'favourable dealings of her Majesty's Commissioners," in extenuation of the practice. On the trial of the Babington conspirators, Sir Christopher Hatton, one of the commissioners, put the following question to one of the prisoners ; " I must ask thee one question-was not all this willingly confessed by thyself without menacing, without torture, and without fear of any torture ?” (Howell's State Trials, v. i. p. 1131.) So Sir Edward Coke, on the trial of Lords Essex and Southampton, says, “ Though I cannot speak without reverent commendation of her Majesty's most honorable justice, yet I think her overmuch clemency to some turneth to overmuch cruelty for herself; for though the rebellious attempts were so exceedingly heinous, yet out of her princely mercy no man was racked, tortured, or pressed to speak any thing further than of their own accord and willing minds, for the discharge of their consciences (State Trials, vol. I. pp. 1338, 1348.) In another place, Sir Edward Coke enumerates, among the privileges of peers, that they are not to be tortured. “ For the honor and reverence which the law gives to nobility, their bodies are not subject to torture in causa criminis læse majestatis (12 Rep. 96.) In the third Institute, however, he declares that all torture of accused persons is contrary to law (p. 35), and in his second Institute, he observes, that Magna Charta prohibits torture by the words, nullus liber homo aliquo modo destruatur (p. 48.)
The use of torture was probably resorted to occasionally in the reign of James I., if we may trust the authority of Selden. " The rack is used nowhere as in England; in other countries it is used in judicature when there is a semiplena pro
batio, a half proof against a man, then, to see if they can make it full, they rack them if he will not confess; but here in England they take'a man and rack him, I do not know why, but when somebody bids.” On the trial of Sir Walter Raleigh, which took place in the first year of James's reign, Sir Walter asserted that Keymis, his captain, “ was offered the rack to make him confess.” Lord H. Howard replied, that Keymis “ was never on the rack," and the commissioners “ protested before God," that “there was no such matter intended to their knowledge.” However, on Raleigh's inquiring whether the keeper of the rack had not been sent for, Sir William Wade, one of the commissioners, admitted, that when the solicitor and himself examined Keymis, they told him that he deserved the rack, but did not threaten him with it. It should appear from Raleigh's question,'' that there existed at this time an officer, whose duty it was to employ the instrument of torture. (2 State Trials, 22.) - On the trial of Garnet, the Jesuit, for the GunpowderPlot, Lord Salisbury asserted that nothing had been drawn from him by“ racking or any such bitter torments ;" “a matter ordinary," he said, “ in other kingdoms, but now forborne here.” However, in an account published by authority, it is expressly stated that Guy Fawkes came to his trial weakened by the effects of the rack; and Owen, Garnet's servant, who was reported to have died in prison, is said to have expired under the torture (Memoirs of the Court of James, vol. i. p. 269). Oldcorn, the Jesuit, also, is said to have been five several times racked in the Tower, and once with the uts, most severity for several hours (Butler's Memoirs of English
most ser . 260.) fact, that so late
.-. It is a singular fact, that so late as the reign of Charles II. a writer should be found in this country openly to defend the use of torture in judicial proceedings. In a tract, entitled, “ The Law of Laws, or the Excellency of the Civil Law above all human Laws whatsoever, by Sir Robert Wiseman, Knight, Doctor of the Civil Laws*, 1664,” the writer enters into an elaborate examination of the subject, and argues it in a manner which, if we were not indignant at its atrocious spirit, would
* Sir Robert Wiseman, who was Dean of the Arches, married Elizabeth, the youngest sister of Lord Keeper Guildford. He is described by Roger North as “ an old man but very rich, and withal a most just and good-natured person.” Sir Robert and the Lord Keeper lived on terms of great friendship, their principles being apparently very similar.-See Life of Lord Keeper Guildford, vol. ii. p. 298.
amuse us with its folly. “ Neither does it derogate," says Sir Robert, “ from the clemency of the civil law, that it seems to deal so sharply with those, against whom there are grounds enough to suspect them of some enormous crimes, whereof they are accused, but not evidence full enough to condemn them, as to allow such persons to be set upon the rack, thereby to manifest their innocence by an obstinate denial, or to discover their guilt by a plain confession.”—“ To bring men to the rack in such cases for trial's sake is not to be censured for cruelty. Non cx sævitiâ sed ex ; bonitate talid faciunt homines such things are done by men not out of cruelty but goodness.” It is curious to find the advocates for the rack, the pulley, and the wheel, using precisely the same arguments which some of the supporters of the whip and the tread-mill employ at the present day. “ Sane hic juris rigor,” says Mæstertius, “ (si aliquis sit) utilitate publică compensatur;" « for by the terror thereof,” adds Sir Robert Wiseman, “ it is free from the machinations of wicked and lewd men.” “ These were the cautions,” adds the same writer, after examining the practice of torture by the civil law," which the Roman state did prescribe to be used in this sharp, but as their policy stood (who did not love upon a slender proof to take away the lives of their people) very necessary course of trial by torture, which peaceable and just men could not be offended with, because it was to defend and secure them from the rage and rapine of vile men; and if evil men did groan under that severity, they had their desert and might thank themselves.”_" When a man,” says a modern Wiseman, " has been proved to have committed a crime, it is expedient that society should make use of that man for the diminution of crime, he belongs to them for that purpose;" and the degree of severity to be employed is only restrained to that “which will not excite compassion for the sufferer and lessen the horror of the crime;" so that in a community where the feelings of the people are sufficiently blunted to endure without sympathy the spectacle of the rack, it may be highly “ expedient that society should make use of that instrument for the diminution of crime." . Sane hic rigor juris utilitaté publică compensatur!
We shall conclude the present article with an amusing enumeration of vulgar legal errors, which Mr. Barrington has been at the pains of collecting.
" It may, perhaps, be thought singular to suppose, that this exemption from serving on juries is the foundation of the vulgar error, that a surgeon, or butcher*, from the barbarity of their business, may
* Joseph Scaliger informs us, that a duke of Brunswick, in his be challenged as jurors. It is difficult to account for many of the prevailing vulgar errors with regard to what is supposed to be law. Such are, that the body of a debtor may be taken in execution after his death ; which, however, was practised in Prussia before this present king abolished it by the code Fréderique. Other vulgar errors are, that the old statutes have prohibited the planting of vineyards, or the use of sawing-mills; which last notion I should conceive to have been occasioned by 5 and 6 Edw. VI. cap. 22, forbidding what are called gig-mills, as they are supposed to be prejudicial to the woollen manufacture. There is likewise an act of 23 Eliz. cap. 5, which prohibits any iron-mills, within two and twenty miles of London, to prevent the increasing dearness of wood for fuel. As for sawingmills, I cannot find any statute which relates to them; they are, however, established in Scotland, to the very great advantage both of the proprietors and the country.
" It is supposed likewise to be penal to open a coal-mine, or to kill a crow, within five miles of London ; as also to shoot with a wind-gun, or to carry a dark-lanthorn. The first of these I take to arise from a statute of Henry the Seventh, prohibiting the use of a cross-bow; and the other from Guy Fawkes's dark-lanthorn in the powder-plot. To these vulgar errors may be added the supposing that the king signs the death-warrant (as it is called) for the execution of a criminal; as also, that there is a statute which obliges the owners of asses to crop their ears, lest the length of them should frighten the horses which they meet on the road.
" To these vulgar errors may be perhaps added the notion, that a woman's marrying a man under the gallows will save him from the execution. This probably arose from a wife having brought an appeal against the murderer of her husband, who, afterwards, repenting the prosecution of her lover, not only forgave the offence, but was willing to marry the appellee. It is also a prevailing error, that those who are born at sea belong to Stepney parish. I may likewise add to these, that any one may be put into the Crown-office for no cause whatsoever, or the most trifling injury. An ingenious correspondent, to whom I have not only this obligation, suggests two additional vulgar errors, “ When a man designs to marry a woman who is in debt, if he take her from the hands of the priest cloathed only in her shift, it is supposed that he will not be liable to her engagements.” The second is, “ that there was no land-tax before the reign of William the Third."
An instance of the first of these vulgar errors may be found in a note to Rousseau's Emile, p. 137. Rousseau had in that work adduced it as a proof of the humanity of our laws, that butchers are not received as witnesses in matters of life and death ; but, in a note to the later editions, he adds, that the
time, took a particular pleasure in knocking down an ox.-Scaligerana, p. 37.