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“Lord Campbell said, the refusal of a prisoner to be examined would be taken as a confession of guilt, and the jury would always in such a case find a verdict against him. This would not be so. A sufficient amount of evidence would be required for conviction then, as it is now; and, whenever the evidence was not sufficiently strong, it would be the duty of the judge to direct an acquittal. But, when there is enough legal evidence to convict, we can see no reason for giving the accused the benefit of a doubt, which he himself has the power to clear up. The principle applies, of course, to every kind of charge, the more serious as well as the less serious, and when Lord Campbell urges as an argument against the bill, that it would extend to hightreason, he is only putting an extreme case, which does not alter the general question.
“ It was objected that the proposed law was un-English, and borrowed from the French system. This sort of talk is often resorted to, for lack of more solid argument. If a thing be good, it is none the worse for being borrowed from the French; and if bad, it is not to be recommended by any example or any length of usage. The present bill, however, does not adopt the French system. In France the examination of the accused is compulsory.. Lord Brougham proposes that it should be optional with him to give evidence or not, the same as in a civil cause.
“The English people have been slow to adopt changes in the law. So
many absurdities have been tolerated for centuries, that we look upon the antiquity of a practice as a very slender recommendation for its continuance. It was not until the reign of William IV. that a person charged with felony was allowed to be heard by counsel. Since that time many important amendments have been made in the criminal law; and we trust that they will speedily be followed by this equally beneficial one, which Lord Brougham has just introduced.”
Or the challenges to examine slaves at Athens, and the practice in relation thereto, enough has already been said. (See Volume III. Appendix IX. page 382, and this Volume, ante, pages 237, 369.) It is a remarkable thing, that, while all the orators agree in asserting, that torture was an infallible test of the truth, and that it was generally admitted to be far superior to that of ordinary testimony, yet the slaves were hardly ever given up to the question. This is to be attributed partly (no doubt) to the humanity of the Athenians,
and partly (I cannot help thinking) to a secret disbelief in the efficacy of the test. Did a man never offer his slave for examination, except when he was sure that he would give evidence in his own favour ? Did a man never demand the adversary's slave, except when there was no risk that he would favour his master ? The thing is somewhat strange. All the arguments turn upon the refusal to give up a slave. Why have we no example of conflicting comments by the Attic speakers upon the answers extracted from slaves ?
Cicero, in the Oratoria Partitiones (34), advises how, when evidence taken by torture is put in, the topic should be handled by the party who produces
it. Before I quote his words, let me observe, that he misstates the practice of the Athenians, who never applied the torture to freemen, to extract testimony from them in the ordinary course of law, but only on extraordinary occasions, to extort confession from persons charged with some high misdemeanour, or by way of punishment upon conviction.
“Sin quæstiones habitæ, aut postulatio ut habeantur, causam adjuvabunt: confirmandum genus primum quæstionum erit: dicendum de vi doloris, de opinione majorum, qui eam rem totam, nisi probâssent, certe repudiấssent; de institutis Atheniensium, Rhodiorum, doctissimorum hominum, apud quos etiam (id quod acerbissimum est) liberi civesque torquentur; de nostrorum etiam prudentissimorum hominum institutis, qui cùm de servis in dominos quæri noluissent, de incestu tamen et conjuratione, quæ facta me consule est, quærendum putaverunt. Irridenda etiam disputatio est quâ solent uti ad infirmandas quæstiones, et meditata puerilisque dicenda. Tum facienda fides, diligenter esse et sine cupiditate quæsitum; dictaque quæstionis argumentis et conjectura ponderanda."
In the early history of the Romans we find no traces of the torture: it was introduced during the republic, but was applied to slaves and foreigners only, upon charges of murder and personal violence. Slaves could not be tortured to prove charges against their masters, except in the case of incest (mentioned by Cicero), which was a crime against the Gods, or in such an extraordinary case as that of the Catilinarian conspiracy. Under the empire the use of torture was extended, and applied to freemen in cases of treason, though only to freemen of low degree: and thus the civil law expresses it—"milites, nobiles, senatores, decuriones, horumque liberi, non sunt torquendi.”. Cicero, notwithstanding what he says in the passage above quoted, speaks differently of the torture, Pro Sullâ, 28; there he argues upon its fallacy and uncertainty-"Quæstiones nobis servorum ac tormenta accusator minitatur: in quibus quanquam nihil periculi suspicamur; tamen illa tormenta gubernat dolor, moderatur natura cujusque tum animi, tum corporis; regit quæsitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur. Vita Sullæ torqueatur: ex eâ quæratur, num quæ occultetur libido, num quod lateat facinus-Nul
lum in hâc causâ testem timemus : nihil quenquam scire, nihil vidisse, nihil audisse, arbitramur.” Even the civil law, which authorises and directs the application of judicial torture, speaks of it doubtfully as a means of discovering truth. “Evidence obtained by torture”.
-says the Digest, lib. 48, tit. 18—“is to be received with caution; it is not always to be trusted, nor is it always to be disbelieved ; it is at best but a deceitful and dangerous instrument, and very often fails to elicit the truth; for many persons are gifted with such a patience or power of enduring torments, that the truth cannot by this means be pressed out from them, while in others there is such a faintness of heart, that they will tell any kind of falsehood rather than undergo the torture; and thus it often happens, that the latter kind of persons will, from dread of pain, tell all manner of fables, not only falsely accusing themselves, but bringing other innocent persons into suspicion and danger.” The commentators upon the civil law in various countries have spoken of it in similar terms.
To show how inefficient it is as a means for the attainment of truth, numerous authentic instances are recorded, both in ancient and modern times, of false accusations and false confessions made under torture. Tacitus relates, that when Octavia, the wife of Nero, was falsely charged by a concubine of the emperor with adultery, her female attendants were put to the torture, and some of them, over. come by pain, allowed the truth of the charge, while the majority persisted in maintaining the chastity of their mistress. (Annal. XIV. 60.) Heineccius mentions a remarkable instance of a German soldier, charged with robbing his officer, who was repeatedly tortured, in order to discover what had become of the stolen property, and who under torture accused himself and others of many crimes, and even murders, which had never been committed. (Exercitatio de Re. ligione judicantium circa reorum confessiones.) Shortly before the French Revolution the Parliament of Paris suspended two judges, who had ordered the execution of a man for the alleged murder of a woman, proved only by his own confession under torture; the woman being found alive after the execution of the supposed murderer.
Rushworth tells us in his Collections (I. 638), that when Felton, who stabbed the Duke of Buckingham, was brought before the Council, he confessed the murder, and was then urged to confess who had set him on to do it, and he was asked whether the Puritans had not had a hand in it. He denied this, and declared to the last that he had no accomplice, and that he had revealed his intention to no man living. Bishop Laud, who was 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 dominate in the extremity of torture, and, if what he should then say 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 tortare might draw unexpected things from him.” He was not put to tbe torture; for it appeared there were no grounds for supposing that he had any confederates.
Notwithstanding the cruelty of the practice-notwithstanding that it has been disapproved and condemned by all enlightened men in Christian countries, and by many even in ancient times-history tells the melancholy tale, that torture has been used as a means of extorting evidence and confession in all ages, and has not been wholly discontinued in Europe until the present century.
Jardine in his Reading. “On the use of torture in the criminal law of England," has shown by extracts from the Council books, that in the reigns of the Tudor family and the two first of the Stuarts torture was constantly used in the investigation of offences, at the discretion of the Sovereign and the Privy Council; nor was it confined to State offences, or those pertaining to religion, but was applied also to ordinary crimes, such as murder, robbery, embezzlement, &c., and no question was ever made of its legality. It is true, that the application of torture either to criminals or witnesses was contrary to the common law of this country; so it is expressly laid down by Fortescue, Coke, and many other distinguished jurists; and Grotius in one of his Epistles cites England as an example of a country, "where people might live in safety under the laws without the use of torture." But it is not less true, that torture, though opposed to the genius and principles of our common law, and indeed expressly contrary to Magna Charta, was a practice adopted and exercised by regal authority, and was handed down by a course of precedents as an unquestionable prerogative of the Crown. It
appears to have been most commonly applied to accused parties, with a view to extort confession of guilt and disclosure of accomplices; but sometimes also it was applied to innocent persons, suspected of having a knowledge of the guilt of others; as when the Duke of Norfolk was accused of conspiring with the Queen of Scots, a warrant was issued to Sir Thomas Smith and Dr. Wilson, a Master of Requests, commanding them to examine Barker and Bannister, servants of the Duke, "and, if they should not confess plainly their knowledge, to cause them to be brought to the rack; and, if they still refused to confess the truth, then to cause them to be put to the rack, and to find the taste thereof until they should deal more plainly." This warrant was under the Queen's signet, and in the handwriting of Lord Burleigh. Sir Thomas Smith, who was himself averse to torture, writes to Lord Burleigh in answer—"To-morrow we'intend to bring a couple of them to the rack, not in any hope to get anything worthy that pain or fear, but because it is so earnestly commanded to us.
Hume in his History of England (V. 457), notices this cruel exertion of prerogative in Elizabeth's reign, not only by her own Privy Council, but by the Council in the Marches of Wales, who were empowered by their commission to use torture whenever they
thought proper. (Compare Hallam's Constitutional History, I. 201, 204. II. 11.)
Sherwood, a Catholic, committed in 1577 by the Ecclesiastical Commissioners for hearing a mass, had made a confession which was construed to imply that the Queen, as a heretic, had no title to the crown. The Attorney-General was directed to examine him, and draw from him the names of other persons who held similar doctrines, and from whom he had got his belief; and the Lieutenant of the Tower was ordered to place him in the Dungeon among the rats, “if he did not name them willingly.". This “Dungeon among the rats," was a cell in the Tower below high-water mark, totally dark, and into which, as the tide flowed up, innumerable rats, that infested the muddy banks of the Thames, were driven through the orifices of the walls. Instances are related of prisoners, from whose arms and legs the flesh had been torn during sleep by the voracity of those animals. Sherwood's courage having withstood the horrors of this dungeon, a warrant was issued authorising the Lieutenant of the Tower, the Attorney-General, the Solicitor General, and the Recorder, “to assay him at the rack.” This failing to shake his constancy, he was sent to be executed for high treason. In the reign
Henry the Eighth Sir William Skevington, a lieutenant of the Tower, immortalised himself by the invention of a new engine of torture, called Skevington's irons, afterwards known by the name of Skevington's daughters, and corrupted into "the Scavenger's daughter.” We are not (it seems) to confound this with a rack which, Coke tells us, was brought into the Tower in the reign of Henry VI. and called the Duke of Exeter's daughter. (III. Institute, 35.) The former is thus described, and its operations distinguished from that of the rack, in Taạner's History of the Jesuits ; cited by Jardine:
Præcipuum torturæ post equuleum Anglis species est, Filia Scavengeri dicta, priori omnino opposita. Cùm enim ille membra, alligatis extractisque in diversa manuum pedumque articulis, ab invicem distrahat; hæc e contra violenter in unum veluti globum colligat et constipat. Trifarium hic corpus complicatur, cruribus ad femora, femoribus ad ventrem appressis, atque ita arcubus ferreis duobus includitur, quorum extrema dum ad se invicem labore carnificum in circulum coguntur, corpus interim miseri inclusum informi compressione pene eliditur. Immane prorsus et dirius equuleo cruciamentum; cujus immanitate corpus totum ita arctatur, ut aliis ex eo sanguis extremis manibus et pedibus exudet, aliis, ruptâ pectoris crate, copiosus e naribus faucibusque sanguis effundatur.”
This engine is noticed in the Journal of the House of Commons of 14th May, 1604. A committee had been appointed to inquire into the state of a dungeon in the lower called "Little Ease; reported that this engine, called “Skevington's Daughters,” was
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