Imágenes de páginas
PDF
EPUB

accomplices, or to extort confession; but its illegality, and absolute incompatibility with the whole system of our government and jurisprudence, have generally prevented it from being actually practised. A memorable instance of this kind occurred during the proceedings against the knights templars in the reign of Edward II. The archbishop of York, in the examinations which he took 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." (See Walter Hemingford, p. 256a.)

"The trial by rack," says Blackstone, " is utterly unknown to the law 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 a beginning thereof they erected a rack for torture; which was called in derision the duke of Exeter's daughter, and still remains in the Tower

a I quote from some MS. collections of a late eminent ornament of the chancery-bar kindly communicated to me for the use of this work.

of

of London." This plan was happily not proceeded in; but a very iniquitous case is recorded in the reign of Edward IV., in which sir Thomas Cooke, who had been lord-mayor of London, was arraigned of treason for lending money to queen Margaret, when one witness alone, who had been examined on the rack, was produced against him". From imitation of the practice of the civil law, however, this abuse seems to have become, in one particular class of cases, habitual and allowed. Barrington, in his remarks on the statute of the 27th of Henry VIII. respecting piracy, notices this parenthesis in the preamble concerning offenders' confessing (" which they will never do without torture or pains,") and adds, "the practice of torturing criminals is not spoken of with any great abhorrence by the legislature; nay, seems to be recited as allowed to have been practised in this country in all offences tried before the admiral." Religious bigotry was the detestable motive for extending this mode of inquisition to spiritual causes. Anne Ascough, who was burned for heresy in the reign of Henry VIII., was racked repeatedly after her condemnation for the purpose of extracting evidence against some court ladies of the same opinions; the successive chancellors Rich and Wriothesly were the immediate directors, if not the actual perpetrators, of these barbarities,

a Blackstone's Commentaries, vol. iv. p. 326.

b Fuller's Worthies, p. 317.

Remarks on Ancient Statutes.

and

and similar charges have been brought against sir Thomas More, but solemnly denied by him.

After the death of Henry, little is heard of the rack till the prosecutions of catholics for treasonable conspiracies against the life of queen Elizabeth, after her excommunication by the pope, and during the detention of the queen of Scots in the country. These unhappy persons were subjected not only to the rack, but to various other species of torment; and not alone by the authority of commissioners specifically appointed to examine into treasons, but often at the mere pleasure of members of the highcommission, and sometimes even, it should seem, at the will of professed informers and recusant-hunters. The administration claimed in a peculiar manner these horrors for its own by a pamphlet written under the eye of Burleigh, and entitled "A declaration of the favorable dealings of her majesty's commissioners," &c. the drift of which is, to exculpate these persons from having applied torture "for matter of religion," which was only done on suspicion of treason; and to assert that in other countries it was more sharply inflicted on lighter occasions.

[ocr errors]

The ministers however found themselves unable to stifle the cry which had arisen against these practices; and the queen' publicly ordered them to be discontinued; but there is good reason to believe that they were still resorted to in private by the high-commission,-a court which was bound by none of the rules of common law. "On the trial of the persons concerned in the Babington conspiracy,

VOL. II.

M

sir

sir Christopher Hatton, one of the commissioners, asks Savage, one of the prisoners who had made a confession, whether it had been extorted from him by the rack. 'I must ask thee one question, Was not all this willingly confessed by thyself without menacing, without torture, and without offer of any torture?'" (Howell's State trials, vol. i. p. 1131.)

[ocr errors]

"Lord Coke too, upon the trial of the earls of Essex and Southampton, says, Though I cannot speak without reverent commendations 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 discharge of their consciences.'" (Howell's State trials, vol. i. pp. 1338, 1348.)

"Lord Coke, in another place, 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 causá criminis læsæ majestatis.' (Lady Shrewsbury's case, Twelve reports.) In the third Institute, however, fol. 35, the same learned writer declares, that all torture of accused persons is contrary to law. In the second Institute, fol. 48, he says, that Magna Charta prohibits torture by the words, Nullus liber homo aliquo modo destruatura'

[ocr errors]

a MS. collections as before.

It was little likely that James should entertain scruples on this subject which had been felt neither by his predecessor nor by the best informed of her law-officers; the custom of his own country had rendered him familiar with the practice, and we have seen on many occasions how small was his deference or esteem for the law of England. In the proceedings upon the powder-plot torture was employed, as has been shown, against several of the inferior agents, and Coke dared to cite it as an example of the king's lenity that more illegal barbarities were not perpetrated by his command.

There is no intimation of the actual employment of the rack in the investigation of Overbury's murder; but it is highly probable that threatenings of it at least must have been employed by Coke, who was extremely zealous in the cause, to extort those extraordinary confessions against themselves which were obtained from Elways and the rest.

Raleigh publicly affirmed on his trial that Keymis had been threatened with the torture; and it appears that both on this occasion and in the endeavours afterwards used to procure evidence of the misconduct of this great man in his Guiana expedition, very severe and oppressive modes of extracting evidence, if not actual torture, were recurred to. At this period not only indifferent witnesses, but accomplices and parties actually under accusation, in all cases of treason,-and apparently in any others which were considered as of great magnitude or enormity,—were subjected to repeated interroga

[blocks in formation]
« AnteriorContinuar »