Page images

found in Little Ease, and that the place itself was very loathsome and unclean.

Another English instrument of torture was called "the manacles," which was used in Bridewell, and is mentioned in a warrant of Council, "to examine Eustace White, a seminary priest, and Brian Lassy, a distributor of letters to papists, and, if they refuse to answer directly, to put them to the manacles, and such other tortures as are used in Bridewell." After this it became in common use. It seems to have operated by compressing the neck towards the feet. Jardine thinks that Shakspeare alludes to it in the Tempest, Act I. Sc. 2—

He's a traitor:

I'll manacle thy neck and feet together.

The case which I am about to mention affords proof, that the Privy Council assumed an authority to award compensation, where a person had been put to the torture upon a false charge. We have seen (ante, p. 238,) that at Athens the Baσaviors, or questioner, was sometimes by special agreement empowered to estimate the damage which the master might sustain by the questioning of his slave. This may have operated in some measure to check the use of torture, and to mitigate its cruelty. That the occasional awarding of compensation, where the torture failed to establish_guilt, would check the practice as it was carried on in England, can hardly be for a moment supposed.

One William Monke was charged in 1626 with treasonable conduct, and put to the torture. The warrant was directed to the Lieutenant of the Tower, a serjeant-at-law, and two clerks of the Council, authorising them to examine him, and "to use the manacles to him if in their discretion they should think it fit." It appears that nothing was proved against him; but in the following year he presented a petition to the Lords of the Council, of which there is a record in the Council register, stating "that he by the malicious practice and accusation, tending to high treason, of one John Blackburn and his wife, had been imprisoned in the Tower of London, and there tortured upon the rack, and had been thereby utterly disabled to maintain himself, his wife and nine children depending on his labourthat the same being discovered, the petitioner had been set at liberty, and a warrant granted from the Board for the apprehending of the said accusers, who, out of a conscience of their guilt, were fled and could not be found that the said accuser, John Blackburn, was possessed of lands and other profits, out of which the petitioner humbly sought to be relieved." It goes on to state that the Lords of the Council, in consideration of the petitioner's sufferings and distressed state, and to the end that he might have some means and relief assigned to him out of the said John Blackburn's estate, directed an inquiry to be made as to the situation and extent of the property alleged to belong to him, and then assigned a part of it to the petitioner by way of compensation.

Dr. Abbott, a chaplain of James I, afterwards Bishop of Salisbury, who wrote a tract to prove Father Garnet's connexion with the Gunpowder Plot, describes it as being the common course with the Commissioners appointed to inquire into State offences to use torture-"speciales delegati confessiones scelerum vel interrogatis eliciunt, vel argumentis et testimoniis evincunt, vel, ubi opus est, tormentis exprimunt." In the investigation of the Gunpowder Plot itself there is some uncertainty how far the torture was used; though it appears that a warrant was issued in the king's own hand, authorising the Commissioners to examine Fawkes upon the rack, using the gentler tortures first, et sic per gradus ad ima tenditur.” Catholic writers assert that many of the witnesses in this affair were put to the question; and a dreadful case is related of Nicholas Owen, a confidential servant of Father Garnet, who was examined in the Tower, and at first denied all knowledge of his master; this being a manifest falsehood, he was brought up again, and one of the king's gentler species of torture was applied to him; his thumbs were tied together, and he was suspended by them from a beam, while the questions were repeated. He then confessed his knowledge of Garnet and his attendance upon him, but insisted that he had nothing more to disclose, upon which he was threatened with the rack on the following day in the meantime he contrived to get a knife, and ripped open his belly. (Jardine, page 47.)

The last recorded instance of the application of torture in England is the case of one Archer, a glover, supposed to have been concerned in a tumultuous attack upon Archbishop Laud's palace at Lambeth. He was racked in the Tower, to make him confess his accomplices. The warrant for his examination was given under the king's signet, addressed to the Lieutenant of the Tower, directing him, in conjunction with two king's serjeants, to take the prisoner to the rack, and "if upon sight of the rack he does not make a clear confession, to cause him to be racked as in their discretions shall be thought fit."

To the use of torture by royal prerogative the Commonwealth put a final termination in England. Torture however continued to be used in Scotland, partly under the authority of the civil law, which then prevailed, and partly as an irregular and occasional practice. (See Hume, VIII. 55. Burnet, I. 212.) The thumb-screw, the boot, and other such instruments, were employed against the Covenanters during the days of terror in the reign of Charles II, which have been rendered familiar to us by the romance of Sir Walter Scott. After the Union however such things were put an end to. The 7th Anne, c. 21, s. 5, enacts: "that no person accused of any capital offence or other crime in Scotland shall suffer or be subject or liable to any torture: provided that this act shall not extend to take away that judgment which is given in England against persons indicted of felony, who shall refuse to plead or decline trial."

The judgment referred to in the last proviso was the peine forte et dure, a species of torture of an exceptional nature certainly, yet prescribed, not by the royal prerogative, but by the ordinary law of England. It was a judgment pronounced against a prisoner who, on an arraignment for felony, stood mute and refused to plead, and was in the terms following:

"That the prisoner should be remanded to prison, put in a low and dark chamber, and laid naked on his back; that there should be placed on his body as great a weight of iron as he could bear, and more; that he should have no sustenance, save only on the first day three morsels of the worst bread, and on the second day three draughts of standing water that should be nearest to the prison door; and in this situation that such should be his daily diet till he died."

Blackstone distinguishes this extraordinary penance from the rack or question, because (says he) "this was only used to compel a man to put himself upon his trial, that was a species of trial in itself." And he excuses it in some measure by saying, that "it was a judgment purposely ordained to be exquisitely severe, that by that very means it might be rarely put in execution." (Commentaries, IV. 325.) Upon this there is an interesting note by Christian; which I need not apologise for quoting:

"Aulus Gellius with more truth has made the same observation upon the cruel law of the Twelve Tables, De inope debitore secando: 'eo consilio tanta immanitas pœnæ denunciata est, ne ad eam unquam perveniretur: for he adds: dissectum esse antiquitus neminem equidem neque legi neque audivi.' But with respect to the horrid judgment of the peine forte et dure, the court could exercise no discretion, and show no favour to a prisoner who stood obstinately mute. And in the legal history of this country there are numerous instances of persons, who have had resolution and patience to undergo so terrible a death, in order to benefit their heirs by preventing a forfeiture of their estates, which would have been the consequence of a conviction by verdict. There is a memorable story of an ancestor of an ancient family in the north of England. In a fit of jealousy he killed his wife, and put to death his children who were at home, by throwing them froni the battlements of his castle; and proceeding with an intent to destroy his only remaining child, an infant nursed at a farmhouse at some distance, he was intercepted by a storm of thunder and lightning. This awakened in his breast the compunctions of conscience. He desisted from his purpose, and, having surrendered himself to justice, in order to secure his estate to this child, he had the resolution to die under the dreadful judgment of peine forte et dure."

This horrid practice continued to be a disgrace to our law till the twelfth year of the reign of George III, when it was enacted, that a person arraigned of felony, who stood mute, should be convicted of the offence charged. It is evident, that the more humane and just

course was, to construe the silence of the accused as a plea of not guilty, rather than a confession; and at length this view was adopted, and the 7th and 8th George IV, c. 28, directs that, when the prisoner stands mute of malice, or will not directly answer to the charge, a plea of not guilty may be entered for him by order of the court."

That the practice of using torture in England was derived from the civil law, appears not only from the absence of any sanction by the common law, but from several other circumstances-as, from the appointment of a Master of Requests, who was a civilian, to be present at the examination-from the recital in the earlier warrants of the "vehement suspicion" of guilt, which was originally considered necessary, and which corresponds to the indicia torture, amounting to the semiplena probatio, required by the civil law-also from the custom of bringing the party to the rack, to put him in fear of it, before it was applied, the same distinction which existed between the territio and tortura of the civilians. It is further to be observed that there is no instance in our country of the application of torture to persons of noble blood, which agrees with the Roman law. Sir Edward Coke reports it to have been agreed in the Countess of Shrewsbury's case, that "it was a privilege which the law gives for the honour and reverence of the nobility, that their bodies are not subject to torture in causá criminis læsæ majestatis." (12 Reports, 96.)

It should be mentioned in justice to the civil law, and to those who administered it, that the torture was resorted to by them not in any spirit of inhumanity, but from an overabundant anxiety to obtain sufficient evidence in capital charges, and a distrust in ordinary testimony, unless it were well confirmed, not very dissimilar to that which the Attic orators represent to have been the feeling of their countrymen. Nor was the exercise of this dangerous power left to the arbitrary discretion of the judges and magistrates under the Roman law; but they were bound by the letter of their code to use it with certain limitations, and under definite rules: they could only apply the torture on their individual responsibility: if they used it improperly, or on an occasion which did not justify its application, the offence was capital by the letter of the law, and they were liable to make full compensation to the injured party. In England, on the other hand, its use was arbitrary and unrestricted, for the very reason that it was not sanctioned by the law of the country. There was no rule of law to guide those who applied it, nothing but the will of the crown, which was superior to law, and which transfused its spirit into the minds of those who executed its warrants.

Blackstone, who draws a contrast between the English and the Roman law to the advantage of the former, but says very little of the superseding of law in England by royal prerogative, observes in relation to the use of torture: "it seems astonishing that this usage should be said to arise from a tenderness to the lives of men; and

yet this is the reason given for its introduction in the civil law, and its subsequent adoption by the foreign nations; viz. because the laws cannot endure that any man should die upon the evidence of a false or even a single witness; and therefore they contrive this method, that innocence should manifest itself by a stout denial, or guilt by a plain confession: thus rating a man's virtue by the hardiness of his constitution, and his guilt by the sensibility of his nerves.”

The scruples of the civil law in regard to testimony are assigned in an ancient statute, the 27th of Henry VIII, chapter 4, as a reason for changing the mode of trying certain offences. It recites "that pirates, thieves, robbers, and murderers upon the sea, many times escape unpunished, because the trial of their offences hath heretofore been ordered before the Admiral, or his lieutenant or commissary, after the course of the civil law, the nature whereof is, that, before any judgment of death can be given against the offenders, either they must plainly confess their offence, (which they will never do without torture or pains,) or else their offences be so plainly and directly proved by witnesses indifferent, such as saw their offences committed, which cannot be gotten but by chance at few times, &c."—and then it enacts, that such offences shall be tried under the king's commission directed to the lord admiral, &c., according to the course of the common law.

The practice of torture, together with the other procedure of the civil law, passed into the judicial system of most European countries, and continued to form a part of it until a recent period.

In France the Question préparatoire, which was used in order to enforce confessions where strong presumptive evidence of guilt was not thought sufficient to warrant capital punishment, was first forbidden by a decree of 24th August, 1780; and by a law of 9th October, 1789, torture was entirely abolished throughout the French dominions. In Russia the use of torture in judicial inquiry was first interrupted by a recommendation of the Empress Catherine in 1763; and its final abolition as a part of the Russian law was effected by an imperial ukase in 1801. In the middle of last century it was prohibited in Prussia, Saxony, and Austria; but not in other German states till the present century. For instance, in Bavaria and Wurtemburg it was first suspended by ordinances in 1806, in Hanover in 1822, and in the Duchy of Baden in 1831. The inquisitorial tribunals of Spain and Italy have been slow and reluctant to abandon a practice so congenial to their institution.

« EelmineJätka »