Chapter 1:
The official Council Books of torture cases
Cicero speaks of torture as an existing usage among the Athenians and Rhodians, and censures the extent to which it was carried by the laws of those communities. In the earlier history of Roman law, we find no traces of the use of torture, but it appears to have been introduced soon after the destruction of the Republic, though at first it was only employed in the case of slaves and foreigners upon charges of murder or personal violence, and was never applied to citizens.
In this state, the use of torture is frequently alluded to by Cicero, Tacitus, Quintilian, and other writers as a common practice at Rome. At a later period it was applied even in the case of citizens, but apparently only upon occasion of very enormous crimes, or for the purpose of corroborating the testimony of persons who were not competent witnesses by the Roman law, and whose evidence was only received where facts could not be proved by any other means. From the Civil law, the practice of torture was adopted by the procedure of most European countries into which the jurisprudence of Rome was transfused, and in many of them continued a portion of their judicial system until modem times.
In France, the Question préparatoire, which was used in order to enforce confessions where strong presumptive evidence of guilt and was not thought sufficient to warrant capital punishment, which was forbidden by a decree of August 24, 1780 by a law of October 9, 1789 when torture was formally abolished in every case throughout the French dominions. In Russia, the use of torture in judicial tribunals was first interrupted by a recommendation of the Empress Catharine in 1763 and its final abolition as a part of the Russian law was effected by an Imperial Ukas in 1801. In the middle of the seventeenth century, the increasing prevalence in Germany of just and rational opinions respecting jurisprudence induced the abolition of torture in Prussia, Saxony, and Austria, but it continued to disgrace the administration of criminal justice in the majority of the German States until the eighteenth century. For instance, in Bavaria and Wurtemburg it was first suspended by ordinances in 1806, in the kingdom of Hanover in 1822, and in the Grand Duchy of Baden in 1831. The Stat. 7 Ann. c. 21. sect. 5, declares that “no person accused of any capital offence or other crime in Scotland, shall be subject or liable to any torture;” and in England, though it is not expressly forbidden by any Act of Parliament, there is no instance of its application subsequently to the Commonwealth.
Even in the Civil law, which authorizes and directs the application of judicial torture, it is spoken of doubtfully as a means of discovering truth: “Evidence obtained by torture,” says the Digest, “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 extract 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 ill others there is such 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.”
Tacitus relates that when Octavia, the wife of Nero was falsely charged by a concubine of the tyrant with adultery, her female attendants were tortured, and that several of them, conquered by the severity of pain, assented to the falsehood, though most of them persisted in maintaining the chastity of their mistress. In the criminal tribunals of Germany, false confessions of crimes upon the application of torture often occurred. Heineccius mentions a remarkable instance of a German soldier charged with robbing his officer, who was tortured repeatedly in order to force him to discover what had become of the stolen property, and who under torture accused himself and others of many crimes and even of murders which had never been committed. Shortly before the Revolution in 1793, the Parliament of Paris suspended two Judges from their office 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 discovered alive within two years after the execution of the supposed murderer.
It is related by Holinshed and other chroniclers, that in 1468 not many years after Fortescue wrote to Sir Thomas Coke, Lord Mayor of London, that he who was tried for High Treason, and convicted of treason, upon the single testimony of one Hawkins, elicited by torture had Hawkins himself convicted of treason upon his own confession on the rack, and executed. It can hardly be doubted that at this period many other instances occurred, though the particular records of them have perished.
Sir Edward Coke, in the 3rd Institute, p. 35, after relating the traditional story that the rack was brought to the Tower by the Duke of Exeter in the reign of Henry VI., and was for that reason called “the Duke of Exeter’s Daughter,” proceeds as follows: “Sir John Fortescue, Chief Justice of England, wrote his Book in commendation of the laws of England, and therein preferreth the same for the government of this country before the Civil law; and particularly that all tortures and torments of parties accused were directly against the common Laws of England,and showed the inconvenience thereof by fearful example, so as there is no law to warrant tortures in this land, nor can they be justified by any prescription, being lately brought in. And accordingly all the said ancient authors are against any pain or torment to be put or inflicted on the prisoner before attainder, nor after attainder, but according to the judgment. And there is no one opinion in our books, or judicial record (that we have seen and remember), for the maintenance of tortures or torments.” In the 4th Institute, p. 48, the same writer, in commenting upon the above words of Magna Charta, again asserts that they amount to an express prohibition of torture.
Sir Thomas Smith, one of the most enlightened men who adorned the reign of Queen Elizabeth, a statesman, a philosopher, and a lawyer, expresses a still more remarkable condemnation of torture. The passage, which is curious on many accounts, is as follows: “Torment or question, which is used by the order of the Civil law and custom of other countries, to put a malefactor to excessive pain to make him confess of himself, or of his fellows or accomplices, is not used in England. It is taken for servile. For how can he serve the Commonwealth after as a free man who hath his body so haled or tormented? And if he be not found guilty, what amends can be made him? And if he must die, what cruelty is it so to torment him before? The nature of Englishmen is to neglect death, to abide no torment; and therefore he will confess rather to have done anything, yea, to have killed his own father, than to suffer torment. For death our nation doth not so much esteem as a mere torment; in no place shall you see malefactors go more constantly, more assuredly, and with less lamentation to their death than in England. The nature of our nation is free, stout, haulty, prodigal of life and blood; but contumely, beating, servitude, and servile torment and punishment, it will not abide.”
In the case of Felton, who stabbed the Duke of Buckingham in 1628, it is said that all the judges of England, upon the question being formally proposed to them by the King, delivered a unanimous opinion against the legality of torture. The following is Rushworth’s account of the circumstances under which this opinion was given; it explains the apparent contradiction between the daily practice of former times respecting torture, and the opinions of the oracles of the Common law upon the subject: “Afterwards,” says Rushworth, “Felton was called before the Council, where he confessed much concerning his inducement 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 a 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 to 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, on November 13 propounded the question to Sir J. Richardson, Lord Chief Justice of the Common Pleas, to be propounded to all Justices. 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 prerogative in this point.” And having put this question to the Lord Chief Justice, the King commanded him to demand the resolutions of all the judges. And on November 14 all the judges being assembled at Serjeants’ 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.””
And yet it is a historical fact, that anterior to the Commonwealth, torture was always used as a matter of course in all grave accusations, at the mere discretion of the King and the Privy Council, and uncontrolled by any law besides the prerogative of the Sovereign. With the strong language of the authorities, this may appear a startling proposition, and it is therefore proper to direct attention in detail to the evidence by which it is supported, before an attempt to show how this remarkable inconsistency between legal doctrine and legal practice may be reconciled.
But though it may be confidently assumed that the practice existed in those earliest times, there is a difficulty in authenticating particular instances; because in such of the Council books as are extant of a date previously to the reign of Edward VI., the torture warrants are not entered. As a sufficient reason for this omission, we may reasonably suppose, that before that time the orders for torture were more frequently issued either personally by the King, or by his great officers of State under his immediate direction; and that the Privy Council had not yet systematically undertaken the direction of this branch of the prerogative. At all events, it was not the practice to record these warrants in the minutes of the Privy Council before the middle of the sixteenth century.
In the reign of Henry VIII., there is a recital in an Act of Parliament that few offenders of a particular class would confess without pains or torture. In the same reign, too, we find Sir William Skevington, a Lieutenant of the Tower, immortalizing himself by the invention of a new engine of torture, called Skevington’s Irons or Skevington’s Daughters, which was known and dreaded for a century afterwards under the corrupted name of the Scavenger’s Daughter. From the time of Henry VIII., the Council books afford the most unequivocal evidence of the practice of torture during the period to which they refer. Registers of the proceedings of the Privy Council during the reigns of Edward VI., Mary, Elizabeth, James I., and Charles I., are still in existence, with the exception of occasional intervals of a few years; and in these books there are numerous entries of warrants from the Council authorizing the application of torture for the purpose of compelling the disclosure of political conspiracies and crimes of various descriptions.
In order to establish the truth of the proposition, respecting the constant use of torture in former times, it is necessary to trace the history of this practice with some minuteness, by means of the Council books, during the reigns of Edward VI., Mary, and Elizabeth; and when these sources fail, in consequence of chasms in the registers, they can be shown from other authentic sources that it extended with little less frequency through the whole of the reigns of the two first Stuart sovereigns. By the observation of a variety of instances spread over a considerable period, we may possibly be able to deduce some of the rules and principles by which the use of this obnoxious branch of the prerogative was regulated; and with this object through them in chronological order, endeavouring to trace the historical incidents from which they arose.
The first warrant for the application of torture to be found in the Council books during the reign of Edward VI., is dated November 5, 1551 and directs the Constable of the Tower, and all other that from time to time shall have the ordering of the Tower and the prisoners there, to be assisting to certain commissioners for putting the prisoners, or any of them, to such tortures as they shall think expedient. The prisoners here alluded to were doubtless the several persons who had been committed to the Tower upon the charge of being concerned in the imputed treason of the Protector Somerset, and whose confessions or depositions formed the evidence against the Duke upon his trial, which took place a short time afterwards.
November 5, 1551: Council Book
A letter to Sir Arthur Darcie and to all other that from time to time shall have the ordering of the Tower and the prisoners there. To suffer certain Commissioners newly allotted to the examination of the prisoners within the said Tower, as by a supplement of the same closed in the said letter (the copy whereof remaineth in the Counsel chest) may appear, to have access to them when and as often as they shall think convenient. And further, to be assisting to the said Commissioners for the putting the prisoners or any of them to such tortures as they shall think expedient.
January 7, 1552: Council Book
A Letter to the Lieutenant of the Tower to cause one Willson and Warren, lately taken upon suspicion of a heinous murder, to be put to the tortures, when they or any of them shall be brought unto him for that purpose.
The next warrant in the same reign, which is dated January 7, 1552–3 relates to a crime of a private nature, and directs the Lieutenant of the Tower to “cause two persons lately taken upon suspicion of a heinous murder to be put to the tortures.”
The earliest recorded instance of the use of torture in the reign of Queen Mary occurs in 1555, soon after her marriage with Philip of Spain; and it is remarkable that there is no evidence that torture was used towards any of the numerous persons concerned in Sir Thomas Wyatt’s rebellion, which took place soon after Mary’s accession to the throne. On June 9, 1555 an entry is made in the Council book of a letter to Lord North and other commissioners, and of another letter to the Lieutenant of the Tower, requiring them to “bring such obstinate persons as will not otherwise confess to the tortures, and there to order them according to their discretions.”
June 9, 1555: Council Book
A Letter to the Lord North and the rest of the Commissioners for the examination of prisoners to bring such obstinate persons as will not otherwise confess points wherein they are touched to the tortures, and there to order them according to their discretions.
There seems to be no discovery to the particular occasion to which this examination refers. Burnet, who notices it, says, “Whether this pretended obstinacy was a concealing of heretics, or of the reporters of false news, does not appear.” The former is not improbable, as the persecution of heretics was at that time hotly promoted by the Queen and Council.
On December 4, 1555 a letter is written by order of the Council to the Lieutenant of the Tower, directing him to “bring Richard Mulcaster, servant to Dr. Caius, vehemently suspect of robbing his master, to the rack, and to put him in fear of the torture if he would not confess.” Of the particular transaction to which this instance refers there is no trace either in the Council books or in the State Papers, or in the histories of the period. Caius no doubt was the eminent and learned man who was for several years president of the College of Physicians, and founded the College at Cambridge which still bears his name. At the date of this entry he was physician to the Queen, and in great favour, and, as a member of the royal household, might be entitled to claim the assistance of the prerogative in discovering the circumstances of a robbery committed upon him.
December 4, 1555: Council Book
A Letter to Sir Henry Bedingfield to receive the body of Richard Mulcaster, servant to Doctor Caius, vehemently suspect of robbing his master, and by the best means he can to examine him hereof, and to bring him to the rack and put him in fear of the torture if he will not confess.
The next instance is in this reign and dated a few days only after the last, namely, on December 11, 1555 and is of a similar nature. It consists of an authority to the Lieutenant of the Tower, Serjeant Dyer (afterwards Chief Justice of the Court of Common Pleas), and the Solicitor-General, to examine a person “vehemently suspected” of robbery, and if they saw cause to “bring him to the rack, and put him to some pain if he would not confess.” On the same day a letter is issued to the same persons, to bring to the rack one Hugh of Warwick, who was suspected of horse-stealing. On February 16, 1555–6 the Lieutenant of the Tower is authorized to join with Sir John Baker in examining two men, “and to put them upon the torture, and pain them according to their discretions if they would not confess their offences.” What these offences were does not appear; but Burnet, who mentions this instance, seems to refer it to the proclamation against stage-prays.
In January following we find a warrant to the Lieutenant of the Tower and one of the Masters of the Requests, to put to the tortures Richard Gill, charged with having committed a murder in Dorsetshire, and on July 29, 1556 Sir Roger Cholmely and Dr. Marten, one of the Masters-of-the-Requests, are required to examine Silvester Taverner, on a charge of having embezzled the Queen’s plate, and, “for the better attaining of the truth, to put him to such tortures as by their discretions should be thought convenient.”
A letter of July 19, 1557 directs the Constable of the Tower and other persons “to examine such as Sir Edward Warner should inform them of, and to put them to the torture if they should think so good.” And another letter of May 13, 1558 authorizes the Constable, together with Sir Roger Cholmely, Mr. Recorder of London, Mr. Doctor Marten, and Mr. Vaughan, to “bring one French to the torture, to put him in fear thereof, and also to put him to the pain of the same, if they should think so good.”
Bishop Burnet, in his History of the Reformation, cites expressly from the Council books several of the above-mentioned instances of torture during the reign of Mary, referring to them as proofs of the Roman Catholic persecutions of those days, and of a premeditated design on the part of the King and Queen to introduce the Spanish Inquisition into England. In one passage he says, “The putting people not yet convicted to the torture because they were thought obstinate and would not confess, and the leaving the degree of the torture to the discretionof those appointed for their examination, was a great step towards the most rigorous part of the proceedings of Inquisitors.” “Arbitrary torture,” he says in another passage, “and secret informers seem to be two great steps made to prepare the nation for an Inquisition.” The enumeration made, comprises all the cases of torture mentioned by Burnet from the Council books as having occurred in Mary’s reign, and adds several of which he does not appear to have been aware. Among these recorded and authentic cases, it cannot be proved that anyone arose from the prosecution of heretics. In some instances it may be conjectured, from a comparison of dates and circumstances, that this was the case; but there is no direct or even probable proof of the fact; and, on the other hand, it is obvious from the entries themselves that the majority of them referred to murders, robberies, embezzlements, and other crimes wholly unconnected with the ordinances of religious bigotry.
Admitting, however, the truth of those tales of torture which have been enrolled and perpetuated in the Annals of Catholic persecution upon the questionable authority of Fox’s Martyrology, it is hardly possible that Burnet, especially if he wrote with the Council books before him, could have been ignorant that the use of the rack was not peculiar to the reign of Mary. Yet the Protestant Bishop, composing his History under strong party prejudices, is especially careful to throw these cases of torture into his enumeration of the enormities of a Catholic reign as so many examples of the wickedness of religious persecution, and is equally careful to cite not a single instance of the same kind of injustice from the Protestant reigns which preceded and followed it.
To proceed to the reign of Elizabeth, and in the long catalogue of the cases of torture which occurred in the reign of a sovereign whom Protestant historians delight to honour, you will not fail to observe that many instances and those sometimes the most prominent for refinement of cruelty, unquestionably and avowedly arose from Protestant persecution.
The earliest entry of a torture warrant in the Council books of Elizabeth occurs about four months after her accession to the throne, and consists of a letter to the Lieutenant of the Tower, dated March 15, 1558–9 requiring him to send for the Knight Marshal to assist him in examining two men, named Pitt and Nicholls, accused of robbing a widow in London; and if the prisoners should persist in denying the fact, they are “to be brought to the rack, and to feel the smart thereof as the examiners by their discretions shall think good for the better boltingout the truth of the matter.”
In 1565 a letter is written to Lord Scrope, directing him to “deal somewhat sharplywith Nicholas Heath, to the end that he should declare why he wandereth abroad; and if he will not be plain, to use some kind of torture unto him, so it be without any great bodily hurt.”
In 1570, a man named Andrewes, “vehemently suspected of a very heinous murder in Somersetshire,” is ordered to be brought to the Tower and offered the torture of the rack there. In the same year, John Felton, a Catholic enthusiast who had audaciously placarded a copy of the Bull of Pope Pius V. excommunicating the Queen, against the Bishop of London’s palace, was charged with certain conferences with the Spanish Ambassador, which he denied. The commissioners appointed to examine into the transaction are directed “by the Privy Council to deliver him to the Lieutenant of the Tower, whereby he may be brought to the place of torture, and put in fear thereof; and if they shall perceive him still to be obstinate, then to spare not to lay him upon it, to the end he may feel such smart and pains thereof as to their discretions shall be thought convenient.”
In the following year, 1571, the treasonable conspiracy of the Duke of Norfolk respecting the Queen of Scots became the subject of inquiry. There is abundant evidence that torture was used on this occasion, the draft of a warrant under the Queen’s signet, in the hand-writing of Lord Burghley, being still extant. It directs Sir Thomas Smith and Dr. Wilson, one of the Masters of the Requests, to examine Barker and Bannister, two of the Duke’s servants, 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.” Two days after the date of this warrant, Sir Thomas Smith, writing to Lord Burghley respecting the examination of these persons, says, “Tomorrow do 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 you.” And on September 20 he informs Burghley that he had tried Bannister by the racks.
Two circumstances are worthy of remark in this case. In the first place, the warrant proceeds directly and immediately from the Sovereign, without the intervention of the Privy Council; a mode of communicating the authority which was probably quite as much used as that of board-warrants, though the particular instances are not so carefully recorded. It is not therefore to conclude that all the cases of torture which have occurred are noted in the Council books. Secondly, one of the persons to whom this warrant is directed, and by whom it was executed, was Sir Thomas Smith, the same individual whose work not ten years before this period, had denied the existence of torture in England, and had given his testimony so forcibly and justly against the absurdity and injustice of the practice. This apparent inconsistency in the doctrine and conduct of lawyers upon this subject shall be explained. In the meantime, it is due to the character of this humane and enlightened man to record his own expression of disgust at being employed on such a commission. In one of his letters to Lord Burghley from the Tower he says, “I do most humbly crave my revocation from this unpleasant and painful toil. I assure you I would not wish to be one of Homer’s gods, if I thought I should be Minos, Æacus, or Rbadamanthus; I had rather be one of the least shades in the Elysian Fields.”
We come now to a period of strong religious excitement, which continued, with occasional intermissions, to the end of Elizabeth’s reign. The rigour of the executive government towards the Catholics during this period was not less remarkable than the severity of the penal laws which the Legislature from time to time enacted against them. Among other instruments of power which prerogative had placed at the disposal of the sovereign, the torture was one peculiarly applicable to the discovery of the real or supposed treasons of religious fanatics; and accordingly, if we may draw our conclusions from the entries in the Council books, there is no period of our history at which this instrument was used more frequently and mercilessly than during the latter years of Elizabeth’s reign.
A Catholic layman, named Thomas Sherwood, a person of education, had been committed by the ecclesiastical commissioners for hearing a mass, and upon being examined, had confessed his belief in doctrines which were considered to imply that the Queen, being a heretic, had no title to the crown, and consequently to amount to high treason. On November 17, 1577 the Attorney-General is directed to examine Sherwood for the purpose of drawing from him the names of other persons who entertained similar doctrines, and to ascertain from whom he had derived the arguments contained in his former confession; and orders are given to the Lieutenant of the Tower to place the prisoner in the “dungeon among the rats,” if he does not answer willingly. This horrible dungeon is often mentioned by the Catholic annalists of Elizabeth’s persecution. It is described as a cell below high-water mark and totally dark; and as the tide flowed, innumerable rats, which infest the muddy banks of the Thames, were driven through the orifices of the walls into the dungeon. The alarm excited by the eruption of these loathsome creatures in the dark was the least part of the torture which the unfortunate captives had to undergo; instances are related which humanity would gladly believe to be the exaggerations of Catholic partisans, where the flesh has been torn from the arms and legs of prisoners during sleep by the well-known voracity of these animals. Sherwood’s courage and constancy overcame the horrors of this dungeon; and, continuing his resolution, a warrant was issued from the board, on December 4, l577 authorizing the Lieutenant, the Attorney and Solicitor-General, and the Recorder “to assay him at the rack.” This also appears to have failed, for he made no discoveries of importance, and in a few days afterwards the unfortunate man was sent into Somersetshire, where his offence had been committed, to be executed for high treason.
In the year immediately following, by a warrant dated November 4, 1578 which recited that a person named Harding could by no mild course be brought to confess the truth, the Lieutenant of the Tower and the Recorder of London are directed to bring him to the rack, “to prove whether he would discover any further matter;” and by the same warrant they are required to put John Sanford to the rack, and “by means thereof to wrestfrom him the truth of such things as he was suspected to be privy unto.” There is no trace in contemporary history of the transactions to which this instances refer.
The next instance in chronological order vary from the common form by omitting to prescribe specifically any of the usual modes of torture, but leaving the selection of the instrument to the discretion of the parties who are to execute the warrant, with a general limitation as to the extent of the pain and injury to be inflicted. This warrant is dated December 9, 1580 and after reciting that the house of Sir Drew Drury had been robbed “with the privity of one Humfrey, a boy dwelling in the house,” who refused to discover his accomplices, it orders that by some “slight kind of torture, such as may not touch the loss of any limb, as by whipping, the knowledge of the persons and the manner of the robbery may be wrung from him.”
On December 24, 1580 a warrant is issued directing Harte, Bosgrave, and Pascall, described as “persons lately arrested within the realm from Rome and other places beyond the seas, with intent to pervert and seduce Her Majesty’s subjects,” to be brought to the torture. All these persons were seminary priests: Pascall is said to have recanted, but Bosgrave and Harte were some time afterwards tried and executed with Campion and therefore this case may no doubt be considered as an instance of torture respecting religious opinions.
The next recorded case is that of Thomas Myagh, an Irishman, who was brought over by the command of the Lord Deputy of Ireland to be examined respecting a treasonable correspondence with the rebels in arms in that country. The first warrant for the torture of this man was probably under the sign manual, as there is no entry of it in the Council Register. The two reports made by the Lieutenant of the Tower and Dr. Hammond to Sir Francis Walsingham, respecting their execution of this warrant, are, however, to be seen at the State Paper Office. The first of these, which is dated March 10, 1580–1 states that they had twice examined Myagh, but had forborne to put him in Skevington’s irons because they had been charged to examine him with secrecy, “which in that sort they could not do, that manner of dealing requiring the presence and aid of one of the jailors all the time that he should be in those irons,” and also because they “found the man so resolute, as in their opinions little would be wrung out of him but by some sharper torture.”
The second report, which is dated March 17, 1580 merely states that they had again examined Myagh, and could get nothing from him, “notwithstanding that they had made trial of him by the torture of Skevington’s irons, and with much sharpness as was in their judgment for the man and his cause convenient.” How often Myagh was tortured does not appear but Skevington’s irons appear to have been too mild a torture, for on July 30, 1581 there is an entry in the Council books of an authority to the Lieutenant of “the Tower and Thomas Norton” to deal with him “with the rack in such sort as they should see cause.”
A well-known instance of the torture of a seminary priest was that of Alexander Briant. The warrant is dated May 3, 1581 and is directed to the Lieutenant of the Tower, Doctor Hammond, and Thomas Norton: “after reciting that there hath been of late apprehended, among others, a certain seminary priest or Jesuit naming himself Briant, about whom there was taken divers books and writings carrying matter of high treason, and is (as may by good likelihood be conjectured,) able to disclose matters of good moment for Her Majesty’s service,” the instrument directs him to “examine him upon interrogatories framed upon the books and writings found; and if he refuses to confess, to offer him the torture in the Tower; and if, upon the sight thereof, he shall obstinately refuse to confess the truth, then to put him to the torture.” In addition to the ordinary torture, Briant, who was a person of good education, is said by Anthony Wood to have been “specially punished for two whole days and nights by 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 in this particular case is admitted as a fact in a paper attributed to Lord Burghley, and published in Somers’ Tracts; and it is there justified, on the ground “that the prisoner had refused to write when required to do so by the persons who examined him; upon which he was told that he should have no food until he had written to the Lieutenant for that purpose.”
An instance of what may be called irregulartorture occurs about this time in a warrant to the Bishop of Chester, dated June 22, 1581 directing him to cause a young maiden, who had “put into writing certain feigned visions, and scattered them abroad among the popish and ignorant people in his diocese,” to be secretly whipped, and so brought to declare the authors of the imposture.
We now come to the case of Campion the Jesuit, which, on account of the high reputation of the individual among those of his own communion, is the constant theme of Catholic historians. Campion was apprehended in Berkshire, with three other priests, in July 1581, and on the 30th of that month there is a warrant to the Lieutenant of the Tower, Doctor Hammond, and two of the clerks of the Council, to examine him, and “in case he continues willfully to deny the truth, to deal with him by the rack.” They are also required by the same warrant to examine two other priests not named, and “if they find them to halt, then to put them in fear of the torture.” On August 14 of following there is another warrant for the examination of Campion, and two other priests named Peters and Forde, as to what masses they had said, whom they had confessed, and where Parsons and the other seminary priests were, and to put them in fear of the torture if they refused to answer directly. In the same warrant is contained a direction to “proceed to the torture with a priest named Paine, and to examine him thereupon.” On October 29, 1581 a few days before Campion’s trial, there is an authority from the Council to examine him, and also Ford and other prisoners, and to put them to the rack. In the paper published in Somers’ Tracts, written by Lord Burghley in justification of the severities at this time practiced by the Government against the Catholics, it is said, by way of palliation respecting the use of the rack, that “Campion the Jesuit was never so racked, but that he was presently able to walk and write, and that there was perpetual care had, and the Queen’s servants, the warders whose office and act it was to handle the rack, ever by those that attended the examinations, specially charged to use it in as charitable manner as such a thing might be.” Well might the editor observe, “This tender mercy sounds very cruel!” Father More, too, in his History of the Jesuits, denies the fact of the forbearance of Campion’s torturers, and says, that when called upon to hold up his hand at his arraignment, according to the usual form, the joints and muscles of his arm were so injured by the rack that he was wholly incapable of doing so, and that one of the priests who stood near him raised it for him.
A warrant dated April 29, 1582 directs the Lieutenant of the Tower, and other persons named, to examine Thomas Alfield, a seminary priest, “who, it was suggested, was able to discover many matters touching the practices and proceedings of Jesuits and seminary priests within the realm; “and if he should not willingly discover such matters, the Commissioners were charged to put him to the rack and by torture thereof draw from him such things as he should be able to say.”
On April 17, 1586 there is a warrant authorizing the Lieutenant of the Tower and others to put unto the torture of the rack one William Wakeman, alias Oavys, a notorious felon, and “thereby to make him to confess such misdemeanours and robberies as he is to be charged withal, and is privy unto of others.” And on May 13 of following there is a warrant to examine by torture the same man and two others, named Beaumond and Pudsey, for the discovery of certain felonies.
On December 23, 1586 the Lieutenant of the Tower and several other persons, among whom are the Attorney-General [Popham] and the Solicitor-General [Egerton], are required to examine ten persons, whose names are given in a schedule upon a charge of treason, and to “put them to the torture of the rack in such sort as to their discretions and due considerations should seem convenient.” The particular transaction to which this wholesale examination refers is unknown; but as the names of several Catholic priests and some other adherents of the Queen of Scots appear in the schedule, and as the date of this warrant falls in the interval between her trial and execution, it is highly probable that the treasons of which they were accused were connected with the intrigues of Mary and the Babington Conspiracy.
On April 24, 1587 there is a letter to the Lieutenant of the Tower and others, which informs them that one Andreas Van Metter stood charged with certain matters concerning her Majesty’s State and person, which he did obstinately refuse to confess; and goes on to require them, if he should still persist in his obstinacy, “to use the accustomedtorture of the rack, as oftentimes as they should see cause, to force him to confess what might be had out of him touching the said matters.” It appears from one of the periodical reports made by the Lieutenant of the Tower to the Lords of the Council respecting the prisoners in his custody, dated in May (1588) that “Andrew Van Metter, a Dutchman, was imprisoned on suspicion of having been sent over to kill the Queen’s Majesty.” The particulars of this supposed treason do not appear in the histories of that time, nor in any contemporary documents to which has anyone been able to refer to.
There is a warrant dated January 7, 1587–8 authorizing the Lieutenant of the Tower and two clerks of the Council, to examine “certain lewd persons, who were to be charged with disobedience, misbehaviour, and practices against the State and Government, and especially John Staughton and Humfrey Fulwood; and if they should show themselves obstinate and perverse, to carry them to the Tower, there to be put to the rack and torture.”
The next instance that occurs in the Council books is a warrant dated October 25, 1591 directing Dr. Fletcher, Richard Topcliffe (the well-known instrument of Government for the discovery of recusants), and two other persons, “very straightly” to examine Eustace White, a seminary priest, and one 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.” Two days after this, on October 29, 1591 there is a warrant to the Attorney and Solicitor-General [Popham and Egerton] to examine Thomas Clynton, a prisoner in the Fleet; and “if he does not deal plainly in his answers, to remove him to Bridewell, there to be put to the manacles and such torture as is there used.” On June 4, 1592 there is a warrant to put Owen Edmondes, an Irishman, to the torture in Bridewell; and on February 8, three persons, named Unstone, Bagshawe, and Ashel, are ordered to be removed from the Gatehouse and Newgate to Bridewell, and there, in case of need, “to be punished with the torture.” This latter instance was probably connected with the discovery and prosecution of Catholic priests; for it appears from a previous entry in the Council books that Bagshawe was the servant of one Bell, a seminary priest, and had been arrested a few days before in Derbyshire.
The next instance of which is of notice in the Council books, relates to one of those tumultuous risings to drive away foreign traders, or, as it is technically called by Lord Coke, to “expulse strangers,” which had been frequent from very early times in London. The warrant, which is dated April 16, 1593 is directed to the Lord Mayor of London, and requires him to examine “an apprentice whom he had apprehended as the suspected writer of a lewd and vile ticket or placard set up upon some post in London, purporting some determination and intention the apprentices should have to attempt violence on the Strangers and if the Lord Mayor should find pregnant matter to argue him to be guilty of the writing of the said placard, and yet he will not by fair means be brought to utter his knowledge, that he should be punished with torture used in the like cases, and so compelled to reveal it.” There is also a warrant dated May 11, 1593 which appears to relate to the turbulent conduct of the apprentices of London on the same occasion of discontent. It recites that “there have been of late divers lewd and mutinous libels set up within the city of London, among the which there is one set up upon the wall of the Dutch churchyard that doth exceed the rest in lewdness” it then directs the persons to whom it is addressed to search for the authors of these libels, to apprehend and examine suspected persons, and to put them to the torture in Bridewell, “to be used at such times and as often as they shall think fit.”
On November 12, 1595 there is a warrant to Sir Thomas Fleming, the Solicitor-General, and one of the Clerks of the Council, reciting that one Gabriel Colford, “that brought certain seditious books from beyond the seas into the realm, being a most lewd person, and employed for the fugitive beyond the seas in messages hither into the realm, and also a tailor dwelling in Fleet Street, called Thomas Foulkes, in whose house Colford did lodge,” had been lately apprehended; and that both of them had refused to reveal what they knew concerning the Queen and the State: the warrant therefore requires that both these persons should be put to the torture of the manacles in Bridewell. By a subsequent entry in the Council books it is recited as a fact, that Colford had been examined and put to the torture under the above warrant.
On January 25, 1595–6 a letter is sent to Sir Thomas Wilkes and Mr. Wade, authorizing them to examine very secretly one John Hardie, a Frenchman, who had been taken with suspicious letters sewed up in his doublet, the meaning of which he had refused to disclose and if he still refused, they were to try him by the “ordinary torture in Bridewell, and by the pain and terror thereof to draw him to confess.”
On the last day of February (1595), a letter is sent to Sir Richard Martin, thanking him for the extraordinary pains he had taken in apprehending and examining Humphry Hodges, and authorizing him, as “Hodges had not yet discovered” what was, become of the hundred pounds hid in the ground, “to put him to the manacles, thereby constraining him to deliver the whole truth.” By another entry in the Council books it appears that Hodges had stolen and secreted goods and money “being to Sir Henry Bagnall, Knight, attendant about Her Majesty’s service.”
On November 21, 1596 there is a letter to the Recorder of London, Mr. Topcliffe and Mr. Skevington, which recites that “certain lewd persons, to the number of eighty, gathered together, calling themselves Egyptians, and wanderers through divers counties of the realm,” had been lately apprehended in Northamptonshire, and that some of them had been brought to London and committed to prison; and it then directs that they should be put to the manacles in Bridewell, “whereby they might be constrained to utter the truth in those matters concerning their lewd behaviour that should be fit to be demanded of them.”
The next instance of torture recorded in the Council books occurs in the case of Bradshaw and Burton. The names of these persons, Gentlemen, have become celebrated in the history of the law of constructive treason, the resolution of the judges previously to their trial having formed one of the principal authorities for the questionable doctrine, that where a tumultuous assembly intends the forcible destruction of the whole of any particular class of grievances as, for instance, the pulling down all the enclosures of the realm, or demolishing churches, the universality of the design increases the quality of the crime from a mere riot to high treason.
Two persons named Bradshaw and one Burton, together with several hundred discontented persons of the lower orders, had assembled in Oxfordshire with the intention of forcibly destroying the numerous enclosures recently made by the proprietors of lands in the midland counties, and by which much popular discontent had been occasioned. This riotous assembly having been with some difficulty suppressed by the local magistrates, four of the ringleaders were sent to London by the direction of the Privy Council and confined in several prisons. On December 19, 1596 a warrant is issued from the Board directed to the Attorney-General [Coke], the Solicitor-General [Sir Thomas Fleming], Francis Bacon, and the Recorder of London, authorizing them to examine these four rioters “upon such articles as they should think meet; and for the better bolting forth of the truth of their intended plots and purposes, that they should be removed to Bridewell and put to the manacles and torture.”
December 19, 1596: Council Book
A Letter to Mr. Attorney and Mr. Solicitor General, Mr. Francis Bacon, and Mr. Recorder of London, or to any two of them: You shall understand that there hath been of late a very detestable practice and conspiracy discovered of certain lewd persons that intended to make a rising and a commotion in the county of Oxford, and to draw more members to them out of other counties adjoining, as you shall more particularly understand by the examinations that have been taken of them by our very good Lord the Lord Norreis, and some other justices of that county, by whose endeavors divers of those seditious persons are apprehended and by our directions fewer of the ringleaders are sent up, whom we have caused to be omitted to sundry persons, Bartholomew Starr to Newgate, James Bradshawe to the Compter in Wood Street, Richard Bradshawe to the Clytick, and Roger Isbell to the Fleete, and one more of this crew that was apprehended here (whose name is Robert Burton) was committed to the Gatehouse in Westminster, because it is requisite the bottom of these wicked practices should thoroughly be discovered, whereof they had their beginnings, what partakers they had, and what further mischief they did intend. These shall be to require and authorize you to send for those persons or any other that may be touched in the matter; and after you have perused the former examinations, to proceed further to examine them upon such articles as you shall think meet to be propounded unto them. And for the better bolting forth of the truth of their intended plots and purposes you shall (as you shall see cause) remove them to Bridewell, and cause them to be put to the manacles and torture, that they may be constrained thereby to utter the whole truth be of their mischievous devises and purposes in this wicked and traitorous conspiracy. Whereof we pray you to advertize us from time to time, &c.
On February 2, 1596 a warrant is issued to Sir Edward Coke, Sir Thomas Fleming, Francis Bacon, and one of the Clerks of the Council, directing them to put to the manacles or torture of the rack one William Tompson, “charged to have a purpose to burn her Majesty’s ships, or to do some notable villainy, in order to force him to declare the truth.”
February 2, 1596: Council Book
A Letter to Mr. Attorney-General, Mr. Solicitor, Mr. Francis Bacon, and Mr. William Waad: Whereas there is lately apprehended one William Tompson, a very lewd and dangerous person, that is charged to have a purpose to burn Her Majesty’s ships, or to do some notable villainy: These shall be to require you to examine the said Tomson upon such articles as are delivered to you, William Waad, touching his said devilish purposes and intents, and to deal earnestly with him by such persuasions as you shall think meet to declare by whom he hath been moved thereunto, and who are prior partakers in his said intended purposes, and what further particles intent he had or can discover. Wherein, if by fair means and persuasions he shall not be moved to reveal unto you the whole truth in these matters, then you shall by virtue hereof cause him to be put to the manacles, or the torture of the rack, as in like cases hath been used, thereby to force him to declare the truth, and circumstances of his whole intent and purposes herein, and such further matter resting in his knowledge concerning Her Majesty or the Estate as shall be it to be drawn from him. And so, &c.
December 1, 1597 a warrant issues to seven persons, authorizing them, or any two of them, to put to the torture of the manacles one Thomas Travers, “charged with stealing a Standish of Her Majesty,” if he would not declare the truth. A few days after the date of the last instance, a case of torture occurred founded upon a remarkable transaction. An old gentleman, named Richard Aunger, a Double Reader of Gray’s Inn, had been missing for several weeks, and at last his corpse was found floating in the Thames. On being examined by surgeons, the body exhibited unequivocal marks of violence, which led to a suspicion that the deceased had been strangled or otherwise murdered, and then thrown into the water. Witnesses were called, and after a long inquiry, strong presumptions appeared against the son of the old gentleman, and one of the porters of Gray’s Inn, but no sufficient evidence could be obtained to convict them of the murder. In this state of things application was made to the Privy Council, and a warrant was granted, dated December 17, 1597 directed to the Recorder of London and four other persons, reciting the circumstances which raised a suspicion against “Richard Aunger, the son, and Edward Ingram, porter of Gray’s Inn, to be the committers of that foul murder,” and concluding that, “forasmuch as the fact was so horrible, that an ancient gentleman should be murdered in his chamber, it was thought meet that these two persons should be examined, and if they would not confess the truth, that they should be put to the manacles in Bridewell.”
On January 4, 1598 there is a warrant to the Lieutenant of the Tower and Richard Topcliffe to “take order for the straight examination” of two persons, named Richard Denton and Peter Cooper, who were supposed to be privy to some dangerous design against the Queen and the State, “using such means of torture by the manacles as they should find needful to make them particularize the truth.”
The Council books for the first twelve years of the reign of James I., are unfortunately missing; and for that period, therefore must be drawn the evidence of the continuance of the practice from other sources.
Two original warrants from the Privy Council for applying the torture to one Philip May, dated April 19 and 20, 1603 before the King’s arrival in London on his accession to the throne, are to be found at the State Paper Office. The first of these is directed to Lord Chief Justice Popham, the Attorney-General, Sir Edward Coke, and the Solicitor-General, Sir Thomas Fleming, and authorizes them to put the prisoner “to the torture of the rack.” The whole of the examinations against May are in the State Paper Office, and therefore the transaction out of which this instance of torture arose, can be readily ascertained.
May was a servant of Lord Hundsdon, the Lord Chamberlain, and was accused of insolent and treasonable speeches against the person and title of the new King, which, at that precise conjuncture, was an offence of serious magnitude. He appears to have been repeatedly examined by the Chief Justice on April 19, without being brought to admit the particulars of a conversation which had been freely admitted by another examinant: on April 20, the date of the second warrant, he is examined again, and after much hesitation admits a part of the words imputed to him; and then, “upon better consideration,” which is the term used in the examination, he confesses the full charge; the material part of which was, that, in an idle conversation with one Prickett, he had declared, that “if the King were not a Papist, he would not live five years, nor five months, nor five weeks; for there were some in his bosom that would cut his throat;” and that a servant of Lord Scrope’s had told him that “the King was wise and gracious, but that no one knew of what religion he was.” The circumstances that this exanimation bears date the same day as the warrant, that it is executed and signed by the same persons to whom the warrant is directed, and that the whole of it is in the handwriting of the Attorney-General, furnish convincing evidence that this was one of those instances in which Sir Edward Coke personally conducted an examination by torture.
In the grand conspiracy of the early part of the reign of James I., the Gunpowder Plot, the only direct evidence of the application of torture, is the well-known warrant in the King’s handwriting authorizing the commissioners to examine Fawkes upon the rack, “using the gentler tortures first.” It cannot, however, be reasonably doubted, that with respect to a conspiracy of such alarming magnitude, the rack was used to overcome the stubborn resolution of others who refused to name their confederates in this atrocious scheme. Dr. Robert Abbott, a clergyman of great eminence, brother to the Archbishop of Canterbury, one of King James’ Chaplains, and afterwards Bishop of Salisbury, who wrote a most ingenious and convincing tract respecting Father Garnet’s connection with this plot, describes it as being in his time the common course with commissioners appointed to examine into offences of State, to make use of torture.
There are several notorious instances of torture in the subsequent part of the reign of James I. In 1614 Edmund Peacham, whose case has become celebrated in consequence of Sir Edward Coke’s dispute with the King and Francis Bacon respecting extrajudicial questions to the Judges, was accused of high treason for reflecting upon the royal prerogative in a sermon written by him and found in his study, but never preached or published. On January 18, 1614 a warrant is issued by the Privy Council to Sir Ralph Winwood, Secretary of State, Sir Julius Cæsar, Master of the Rolls, the Lieutenant of the Tower, the King’s Serjeants, and one of the Clerks of the Council, which, after reciting “that Peacham stood charged with writing a treasonable book or pamphlet, and that it concerned the King to discover many things respecting that book and the author, wherein Peacham had not dealt clearly, directs them to examine him strictly, and if they found him obstinate and perverse, to put him to the manacles as in their discretion they should see occasion.” In returning the examinations taken under this warrant, Sir Ralph Winwood informs the Council that Peacham had been examined upon the interrogatories exhibited to him, “before torture, in torture, and after torture.”
On February 19, l619 a warrant, signed among other members of the Council, by Lord Chancellor Bacon and Sir Edward Coke, is directed to the Lieutenant of the Tower, Sir Henry Montague, Lord Chief Justice, and Sir Thomas Coventry, Solicitor-General, requiring them, or any two of them, to examine one Samuel Peacock, committed to the Tower upon vehement suspicion of high treason, and “to put him, as there shall be cause for the better manifestation of the truth, to the torture either of the manacles or the rack.” In one of Bacon’s letters to the King, he recommends the use of torture on this occasion:
Letter to the King.
But I make no judgment yet, but will go on with all diligence; and, if it may not be done otherwise, it is fit Peacock be put to the torture. He deserveth it as well as Peacham did. I beseech Your Majesty not to think I am more bitter because my name is in it; for, besides that I always make my particular a cypher when there is a question of Your Majesty’s honour and service, I think myself honoured by being brought into so good company. And as, without flattery, I think Your Majesty the best of Kings, and my noble Lord of Buckingham the best of persons favoured, so I hope, without presumption, for my honest and true intentions to State and justice, and my love to my master, I am not the worst of chancellors. God preserve Your Majesty.
Your Majesty’s most obliged and most obedient servant,
Fr. Verulam, Canc.
Feb. 10, 1619.
It is remarkable that this warrant, and the first of those issued in the case of Philip May, are the only two recorded instances in which an authority to apply torture is directed to a common law judge. In the case of May, there is reason to believe that the particular warrant so directed was not executed; and there has not been any discovery or evidence of the actual application of torture in the case of Peacock.
On the January 9, 1621 a warrant is directed to Mr. Serjeant Crewe and the Attorney-General, to examine James Crasfield, a prisoner in the Tower, “for causes known unto them; and if there shall be cause, not only to offer him the manacles and rack, but to use the same as in their discretion they shall find requisite.”
Chapters
Example Blockquote
“Pain [the rack] makes even the innocent man a liar.”
—Francis Bacon, Remains.
“The Law is the surest sanctuary that a man can take, and the strongest fortress to protect the weakest of all.”
—Sir Edward Coke