Heath, J. Torture
And English Law: An Administrative and Legal History from the Plantagenets
to the Stuarts. London:
Greenwood, 1982.
(excerpted by Clifford Stetner)
FROM 1580 TO THE ACCESSION OF
JAMES I 
With the 1580s,
Elizabethan England moved into crisis. The threat of foreign invasion
became
pressing. If it was realized, an associated domestic rebellion might
result; also in association, or independently, an attempt to assassinate
the Queen might occur. The sense of insecurity was inevitably heightened
as a result of infiltration by English agents. trained abroad, of the
Counter Reformation. In July, 1579, a Jesuit mission led by Nicholas
Sanders had been established in
Ireland; military rebellion, which
ensued, was not put down until the end of 1580. By that time, the number
of missionary priests, including Jesuits, in England itself reached about
110. In this context, the longer term effect became manifest of the Bull
Regnans
in excelsis. To those whose loyalty lay with the regime, and whose
lives indeed depended upon its preservation, the preaching of Roman
Catholicism—even if without express political reference—naturally seemed
dangerous. Moreover, the Bull served to show that it was pregnant with
treason. Nor in this respect was the situation modified by an instruction
of Gregory XIII just given to Jesuit missionaries, that the Bull would
bind Roman Catholics only when its execution became possible.
In these circumstances,
it is not surprising that the Crown made use of all of those instruments
that,
de facto, were at its disposal for the discovery of its subjects who might
attack or subvert it and of their strategies. Those instruments, as is
seen from material reviewed in earlier chapters, included torture, and
we have reached what, to judge from the relatively large quantity of evidence,
was its English heyday. However, politico-religious suspects did not at
this stage become its only target. ...a theft...
We confront the
politico-religous situation with the record, for the 24th of
December, 1580 of a warrant to the Lieutenant of the tower and the
(Common) Law Officers. Three men—Harte, Bosgrave, and Pascal—were
to be taken to the Tower and there examined: if necessary terrorized by
confrontation with the means of torture. Bosgrave was a jesuit, Harte a
priest, Pascal a Roman Catholic layman of good family. The warrant indicated
that they were subversive mssionaries from Rome or elsewhere abroad.
The matters for investigation against them were, however, intimated to
its addressees in a separate document.
The next warrant
recorded—for
the 3rd of May, 1581—informed the Lieutenant,
Dr. John Hammond, and
Thomas Norton of the arrest of Alexander
Briant, whom it described as a “seminarie priest, or Jesuit”, with treasonable
documents upon him. It further instructed them to examine him about
those documents.
If he would not confess, they were first to seek to
terrorize him with a sight of the means of torture at the Tower and then
if he remained obstinate, to put him to torture.
...politico-religious
reference...
...complicity in
rebellion...
...other priests...
...terrorization,
if necessary, of Campion...
...two priests...
...another priest...
...a robbery
committed against a lady of title...
...other robberies...
If he
proved obstinate, he was to be tortured “in some reasonable manner”
Norton. a Puritan
and holder of the City office of Remembrancer, was employed about
this business at the same period as Hammond. and both were (among others)
entrusted
with the torture interrogation of Campion the Jesuit. One outcome of
Norton’s
involvement was that he acquired an unfavorable popular reputation as
a tormentor. We have seen that Walsingham indeed turned to him for
help in the second day’s racking of Francis Throgmorton; it looks as though.
even in Government circles, he may have been regarded as possessing
a certain relevant expertise.
More interesting
still are three figures who emerge upon the present scene a little later,
and appear to have participated in torture interrogations as part of a
much larger commitment to police activity: Richard Young. William Wade,
and Richard Topcliffe.
Young held in the
Port of London the office of Customer. He was also a justice of the peace.
His earliest concern with torture appears to have arisen, under the aegis
of the Council. in connection with efforts by him to ensure the punishment
of thieves. It seems to have been in the character of a busy justice that
he was later drawn into the pursuit of political and politico-religious
offenders and so came to be employed by the Council in their examination
under torture. In the Conciliar records of torture warrants, his name appears
fifteen times more often than that of any other individual and much more
often than the holders from time to time of any particular office. Four
of the cases concerned were of theft. He was also named as an addressee
in the draft warrant of 1590 concerning the politico-religious case of
Christopher Bayles and his associates.
In the latter draft,
the other proposed addressee was Topcliffe. It was also to Topcliffe and
Young that, in 1591, the Law Officers were directed to leave Thomas Clinton.
if torture seemed necessary: as “butchers’, the two men were linked in
Southwell’s letter, of January, 1590, to Aquaviva. According to the Gerard
autobiography, after Gerard’s arrest, his second examination—without torture—was
before the two of them, at Young’s house. Their relative roles in the Government’s
business deserve consideration. The Gerard autobiography seems to regard
Young as the key figure in the politico-religious police of the metropolis.
He was a justice of the peace, proceeding as such, although with peculiar
determination, sometimes upon instructions from the Queen. generally in
a special working relationship with the Council. Topcliffe was not a
justice of the peace and indeed held no public office. He was, however,
fanatically hostile to Roman Catholicism and successful in attaching himself
to the highest centers of influence. Sometimes, he received instructions
from the Council. and—including the case of Thomas Clinton the Conciliar
records show nine instances of his employment where torture might be used.
However, he attained to a special working relationship with the Queen herself
and came to occupy in the prosecution of Roman Catholics for politico-religious
offenses a position de facto resembling that of a justice of the peace,
but without territorial limits being placed upon his authority within the
realm, and to command from the Judicature more deference than any ordinary
prosecuting justice would have received. Moreover, he found the funds to
organize a considerable force of agents. He may be regarded, to this extent,
as a primeval common ancestor of Pinkerton’s and the FBI.
Wade emerges
as of better calibre. He was one of the Clerks of the Council. He is named
as addressee in the records of eight Conciliar torture warrants.
The occasional inclusion among addressees of such warrants of other Council
Clerks—Thomas Wilkes, Robert Beale, Anthony Ashley—need not mean more than
that they were good at drawing interrogatories. Wade’s involvement seems
to have been different. Near the end of the reign, he was said to have
taken Topcliffe’s place as the man most feared by English Roman Catholics.
Besides holding Conciliar office, he appears to have been a justice of
the peace. A Conciliar record peculiarly suggestive concerning his talents
is that for the 25th of January, 1596, regarding John Hardie the Frenchman.
It was issued only to the senior Clerk, Wilkes, and to Wade; since the
former could have been relied upon to make a due note of the examination,
it seems probable that Wade himself was included, as might have been Young
or Topcliffe, in the role of hunter. In retrospect. one cannot love such
a character, but it is right to say that he appears to have been a man
of scruple.
VIII. USES AND
CONDITIONS
Among the Conciliar
torture warrants recorded for this period, only one—that having Topcliffe
among its addressees— concerned murder; seven concerned offenses of theft:
in one instance—that where, again, Topcliffe was an addressee—the theft
had been from the Queen. We know of one warrant that issued concerning
piracy. However, by and large. our evidence suggests that torture was
purportedly authorized by the Queen herself or by the Council, at least
four times as often in politico- religious or simply political cases as
in others.
Regarding the conditions
that induced recourse to torture, and regarding its immediate purposes,
politico-religious cases of the early 1580s obtained a semi-official explanation,
to which I have already made some reference, and we must now return.
On the 27th of
March, 1582. when Thomas Norton—after a spell in the Tower for
too radical religious utterance—was suffering the modified sanction
of house arrest at the Guildhall, he wrote to Walsingham a letter in
which he complained of the evil popular repute into which he had fallen
for his supposed part in the examination of Roman Catholic suspects, especially
Campion and Briant. He asserted, inter alia, that in the cases concerned:
1. "None was put to the rack that was not first by manifest evidence known to the Council to be guilty of treason";
...none . . . have been put to the rack or torture, no not for matters of treason . . . but where it was first known and evidently probable by former detection. confessions, and otherwise, that the party so racked, or tortured, was guilty, and did know, and could deliver the truth of the things wherewith he was charged . . . and the rack was never used to wring out confessions at adventure upon uncertainties.
The letter and the tract are sufficient evidence of public anxiety about the torture of Campion and other missionaries. That suspicion of the use of such methods was capable of discouraging a ‘guilty” verdict is suggested by a remark the Attorney- General, Popham. is reported io have made during the trial in 1589 of the Earl of Arundel. The Earl having alleged that several witnesses were unworthy of credit, Popham’s response included an assertion that: 'they were never tortured, but confessed all this willingly'. It may thus be supposed that the authorities, if they had it in mind to acquire through interrogation evidence for use at a subsequent Common Law trial, whether of the examinate or of someone else, would not use torture unnecessarily.
The dealings are
interesting that occurred during April, 1586. with Beaumont, Wakeman, and
Pinder, the suspected thieves. The Council clearly wanted larger depositions
from them than would have been essential to promise the conviction of each
on a capital charge. On the other hand, the impression may be gathered
that such an essential minimum was itself being sought.
What may be true
is that torture was not used, for whatever result, in an entirely cynical
mood: that it was not used without a fairly strong sense that the examinate
had brought it upon himself by withholding the truth. Before the present
period, several relevant Conciliar records in political or politico-religious
cases, and one in a case of ordinary crime, refer to obstinacy of the examinate.
During the present period, there are seven more although in only one does
the record contemplate an ordinary crime. Of course, such references might
have been humbug, but we may recall the case of William Weston who. as
above noticed, escaped torture, although there is no reason to suppose
that without it he liberally supplied the authorities with means of destroying
other Roman Catholics.
141
ACCESSION OF
JAMES I TO 1640
PART I PARTICULAR
WARRANTS
A long gap in
the Council records begins after 1601. However, two Conciliar warrants
are extant for the period between King James’s accession and his arrival
in London. Both concern Philip May, and they are dated the 19th and
20th of April, 1603.
The first warrant’
is addressed to Popham, the Lord Chief Justice; Coke, the Attorney-General;
the Solicitor-General; the Lieutenant of the Tower; or any two or three
of them. Its terms are as follows:
After our hartie commendations to Your Lordship. Whereas we have geven order for the committing to the Tower of one Phillip May for some matters wherewith he is charged concerning the State which are particularly knowne unto Your Lordship. about the which we think it fitt he should be further examyned to discover the further intents of the said practice. These are therefore to pray Your Lordship and the rest, to take some convenient tyme to examyne the said Phillip Maye uppon such poyntes as you shall think meete to charge him; and as you shall find occasion you maie putt him to the torture of the racke, the better to drawe from him a confession of the trewthe if otherwise he will not be induced to confesse playnely the matters of the said practise. And so we bydd you hartilie farewell.
After our hearty commendations. Whereas one Phillip Maye hathe been accused for uttering moste lewde and disloyale speeches, and being committed to the Tower and there examyned, thoughe he doth not acknowledge those words that most bewray his corrupt and trayterous disposition, yet he doth confesse all the other matter and circumstances informed against him, and so fayntly doth deny the same as there is lyttle doubte of the truth of the accusation. These trayterous speeches concerning the person of our dread Sovereign the King’s Most Excellent Majestie, wee in all dutie to His Highness do thinke it meete that he be dealt with with all severity. not only to confesse playnely those haynous speeches he used, but to make a true and playne declaration of the cause that moved him to utter the same; of whom he hath heard any such speeches. with whom he hath had any conference touching such matters, and such like questions as you shall thinke meete to be mynistered unto him. Wee doe therefore requyre you to repayre agayne to the Tower. and to examyne him of the said matters, and if he shall not deale playnly and truly to discover the depth of his knowledge, mynde, and conference in all these matters, then you shall by virtue hereof put him to the Manacles, or such other torture as is used in the Tower, that he may be inforced to reveale the uttermost of his knowledge in any practise, purpose, or intent against His Highness. For your better proceeding herein accordingly these shall be your warrant; so fare you hartely well.
Next, with reference
to the Gunpowder Plot. instructions dated the 6th of November, 1605 are
extant. They are in King James’s hand, and prescribe interrogatories for
Guy Fawkes, who at the date in question was still known by his assumed
name of "Johnson". They direct that,
149
"...if he cannot
otherwise be brought to confess, “the gentler tortures as to be first used
unto him, et sic per gradus ad ima tenditur” (“and so it is steered
stage by stage towards extremes”).
In his History
of England, Samuel R. Gardiner said that Fawkes was: (a) on the 7th of
November. 1605. probably subjected to one of whatever measures were regarded
as forming the King’s category of “gentler tortures” (b) on the 9th of
November, 1605. “undoubtedly subject to torture of no common severity”.
He called attention to a letter8 from Sir E. Hoby to Sir I. Edmonds, dated
the 9th of November, but containing a passage that—he thought—was evidently
written on the evening of the 7th or morning of the 8th of November, and
that stated that “since Johnson’s being in the Tower, he beginneth to speak
English, and yet he was never upon the rack, but only by the arms upright.”
However, Gardiner,
in another book, What the Gunpowder Plot was, suggests that: (a)
it was the mere sight of the rack that induced Fawkes to make, on the 8th
of November, 1605, a statement that was full except that it omitted the
names of his accomplices; (b) probably, the manacles were used on the 9th
of November, but the rack was not actually brought into use at all. He
observes that in The King’s Book,’Fawkes is said to have been shown
the rack, yet never to have been racked, and that Wade in a letter to Salisbury
on the 7th of November’ indicated that, so far, Fawkes had merely been
threatened with torture.
Further consideration
of Gardiner’s sources may suggest that subjection of Fawkes to torture
in the manacles began on the evening of the 7th or morning of the 8th of
November, and that, probably, it was continued on the 9th of November;
that the rack, although not used, probably was threatened at some stage.
Certainly, the often-mentioned fact that Fawkes’s signature to the examination
taken from him on the 9th of November was shaky does not necessarily point
to use of the rack.
* * * *
Following the
gap in the Conciliar records, a warrant is entered for the 18th of January,
1615 that was addressed to Sir Walph Winwood (Secretary of State). Sir
Julius Caesar (Master of the Rolls), the Lieutenant of the Tower, the (Common)
Law Officers, two sergeants-at-law, and one of the clerks of the Council,
concerning a clergyman, Edmund Peacham. Moreover, a copy of this warrant
is extant. It recites that Peacham stands charged with a book or pamphlet
containing what is conceived to be treasonable matter, and that he has
declined to answer truthfully—as would have become “an honeste and loyale
subject" —interrogation thereon. Accordingly, it requires all of the addressees
to go to the Tower and there examine him upon such interrogatories as they
think fit.
Also extant, is
the text of a report by the addressees of the above warrant. It sets out
first the interrogatories upon which (pursuant to the warrant) Peacham
was examined, then mentions use of torture and confesses lack of success:
1. Who procured
you, moved you, or advised you, to put in writing these traitorous slanders
which you have set down against his majesty’s person and government, or
any of them?
2. Who gave
you any advertisement or intelligence touching those particulars which
are contained in your writings; as touching the sale of crown lands, the
deceit of the king’s officers, the greatness of the king’s gifts, his keeping
divided courts, and the rest: and who hath conferred with you, or discoursed
with you, concerning those points?
3. Whom have
you made privy and acquainted with the said writings, or any part of them?
and who hath been your helpers or confederates therein?
4. What use
meant you to make of the said writings? was it by preaching them in sermon,
or by publishing them in treatise? if in sermon, at what time and in what
place meant you to have preached them? if by treatise, to whom did you
intend to dedicate, or exhibite, or deliver such treatise?
5. What was
the reason, and to what end did you first set down in scattered papers,
and after knit up. in form of a treatise or sermon, such a mass of treasonable
slanders against the king. his posterity, and the whole state?
6. What moved
you to write, the king might be stricken with death on the sudden, or within
eight days, as Ananias or Nabal; do you know of any conspiracy or danger
to his person or have you heard of any such attempt?
7. You have
confessed that these things were applied to the king; and that, after the
example of preachers and chronicles, kings infirmities are to be laid open:
this sheweth plainly your use must be to publish them, shew to whom and
in what manner.
8. What was
the true time when you wrote the said writings, or any part of them? and
what was the last time you looked upon them, or perused them before they
were found or taken?
9. What moved
you to make doubt whether the people will rise against the king for taxes
and oppressions? Do you know, or have you heard. of any likelihood or purpose
of any tumults or commotion?
151
10. What moved
you to write, that getting of the crown-land again would cost blood, and
bring men to say. This is the heir, let us kill him? Do you know, or have
you heard of any conspiracy or danger to the prince, for doubt of calling
back the crown land’?
11. What moved
you to prove, that all the king’s officers ought to be put to the sword?
Do you know, or have you heard if any petition is intended to be made against
the king’s council and officers, or any rising of people against them?
12. What moved
you to say in your writing, that our king, before his coming to the kingdom,
promised mercy and judgment, but we find neither? What promise do you mean
of, and wherein hath the king broke the same promise?
Upon these Interrogatories.
Peacham this day was examined before torture, in torture, between torture.
and after torture; notwithstanding. nothing could be drawn from him, he
still persisting in his obstinate and insensible denials, and former answers.
Raphe Winwood. Jul. Caesar. Fr. Bacon. H. Mountague. Gervase Helwysse.
Ran. Crewe, Henry Yelverton. Fr. Cottington. Jan. the 19th 1614.
Legally, the problem
presented by Peacham’s case (since the Crown displayed a disinclination
to treat him lightly) was that the only evidence found against him concerned
what he had composed, but left, unpublished, in his own study. Might private
commission to writing supply an "open deed", as required by construction
of the Statute of Treasons, 1351 (25 ELIZ, st.5. c.2)? Plainly, the Crown
would have liked to establish that a conspiracy was in the background,
that publication had taken place, or at least that an intent to publish
had been entertained. Discovery of a conspiracy would, of course, have
been valuable from a general standpoint of security, but from a Common
Law standpoint, a positive result on either of the other heads would have
been useful against Peacham if charged with treason. When such better
material was not forthcoming, the King—through the agency, especially of
Francis Bacon, who was by this time Attorney-General—took the extraordinary
step of consulting judges individually on the question whether the prisoner
could be convicted of that offense. Of course, such an approach promised
the advantages that judges consulted were less likely to show courage,
in resisting what the King regarded as his interest, individually than
collectively, and that taken individually, the rest would escape the influence
of Coke, who since his elevation to the Bench had turned into something
of a liberal. Coke, himself, was in the event resistive. However, Peacham
was convicted of treason indeed, although he was not executed, and the
legal merits of the conviction remain unsettled.
For the 19th of
February, 1620, another torture warrant is recorded. Its signatories included
Bacon (who had become Lord Chancellor) and Coke: its immediate addressee
was the Lieutenant of the Tower. It recited that Samuel Peacock,
a prisoner in the Marshalsea, was "upon vehement suspicion of highe
treason against His Majesties sacred person" to be removed to the Tower,
and to be examined by the Lord Chief Justice-Sir Henry Montague, who
as serjeant-at-law had been one of the addressees of the Peacham warrant—the
Solicitor-General, and the Lieutenant. It directed the Lieutenant to take
Peacock to the Tower and declared that it authorized him with both or either
of the other two named examiners to interrogate the prisoner from time
to time and to put him, as there shall be cause for the better manifestation
of the truth, to the torture either of the manacles or of the rack”.
Bacon had written
to the King: “if we cannot get to the bottom otherwise, it is fit Peacock
be put to the torture; he deserveth it as well as Peacham did”. Seemingly,
from a letter by Chamberlain to Carlton, he was put to it.
Next a warrant
is recorded for the 9th of January, 1622, instructing the Attorney-General
and a serjeant-at-law to examine in the Tower, for “causes knowen unto
them”, one James Crasfield. If they found reason, they were to terrorize
him with the manacles and the rack and, at their discretion, to torture
him by those means.
I have not discovered
evidence of the nature of Crasfield’s supposed offense, although the choice
of examiners indicates that Common Law prosecution—presumably, at least
of Crasfield himself—was contemplated.
Locke, in a letter22
dated the 12th of January, 1623, to Carlton, reported, inter alia, that
a servant of Bing, “the counsellor” (that is, counsellor-at-law), had been
questioned on the rack and was likely to suffer execution for prophesying
a rebellion