Torture and the Law of Proof

Langbein, J. Torture and the Law of Proof: Europe and England in the Ancien Regime. Chicago: U of Chicago, 1976.

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...us once again that the architects of the law of torture understood the potential unreliability of coerced confessions.

Often enough the accused who confessed under torture did recant when asked to confirm his confession.⁵³But seldom to avail: the examination under torture could thereupon be repeated.⁵⁴An accused who confessed under torture, recanted, and found himself tortured anew learned quickly enough that only a “voluntary confession” at the ratification hearing would save him from further agony in the torture chamber.

Resisting torture. The accused who withstood all examination under torture without confessing was said to have purged the indicia against him, and was entitled to be acquitted and released unless new incriminating evidence was discovered thereafter.⁵⁵We shall see in Chapter 3 that the abrogation of this rule in the practice of the sixteenth and seventeenth centuries was an important part of the development that ultimately’ destroyed the law of torture.

Note II Torturing the Convicted

The system of judicial torture incident to the Roman-canon statutory proofs did not prevent, and indeed probably helped inspire some other uses of torture. Coercing people to do as the authorities desire was such a simple and obvious practice that it was hard to confine to the jurists’ design. Roman-canon law authorized the use of torture when full proof was otherwise lacking. in order to obtain a confession that would constitute full proof. (In various European states, however, torture was sometimes used against persons already convicted.)

Torture prealable. The criminal who had been duly’ convicted and was awaiting execution of a capital sentence had forfeited his life. Since the criminal was the state’s to execute, the state might put him to some better use first. (We shall see in Chapter 2 that the state came to treat some capital convicts as a resource, better exploited by being kept alive.) The doctrine developed, prominently in France, that the condemned criminal could be examined under torture about other crimes and criminals.⁵⁶As codified in the ordinance of 1670. the practice was limited to discovering the criminal’s accomplices.⁵⁷

In the French sources ordinary’ judicial torture is known as torture preparatoire, as opposed to this torture of a convict, so-called torture prealable, literally “preliminary torture” in the sense of being preliminary to the execution of the capital sentence. The safeguards of the ordinary law of torture, such as the requirement of probable cause, did not exist. Torture prealable was regarded as much less objectionable than ordinary judicial torture. Even Voltaire defended it.⁵⁸When Louis XVI abolished ordinary’ judicial torture in 1780. he excepted torture prealable until 1788.

Requiring confession for condemnation. A less functional practice was the usage, widely’ reported for Belgium, that treated confession as a prerequisite for condemnation even when full witness proof had been obtained.⁶⁰” This practice contradicted the rule of the ius commune that torture was a last resort, to be used only when full proof was not to be had by other means.⁶¹

5 The Torture-Free Law of Proof

By the thirteenth century, when the European law of torture took shape, the English common law had acquired most of the fundamental characteristics that would keep it distinct from the Continental ius commune.’ Of the many differences that separated the two Western legal traditions, none is more striking than this: that the systematic use of torture to investigate crime never established itself in English criminal procedure.

Already in the fifteenth and sixteenth centuries, just as the Roman-canon law of torture was being extended to Germany’, 2 the celebrated Renaissance panegyrists” 3 of English law were noticing this contrast with the Continent and extolling the absence of torture in England. Sir John Fortescue, writing about 1470, points to the practice in France. where ‘criminals and suspected criminals are afflicted with so many kinds of tortures . . . that the pen scorns to put them into writing. “‘i Sir Thomas Smith. writing from France in 1565, announces that: “Torment . . . which is used by the order of civil law and custom of other countries . . is not used in England. it is taken for servile." And Sir Edward Coke’s Third Institute, written in the 1620s, cites Fortescue’s remarks with approval and concludes that “there is no one opinion in our books, or judicial record ... for the maintenance of tortures or torments.. This self-congratulatory’ writing denying the role of torture in England is, however, quite false. The English did use torture. Indeed, both Sir Thomas Smith and Sir Edward Coke were themselves designated in commissions to examine particular suspects under torture.⁷ I What the English did not do was to regularize the use of torture in their criminal procedure. Torture had a much shorter history and a much less central role in England, but it was employed. We have record of more than eighty cases from the century’ 1540 - 1640 in which the Privy Council or the monarch ordered torture (or the threat of torture) to be used against criminals or suspected criminals. The

great majority’ of these cases involve crimes of state: sedition. treason, concerted activity against the established religion. Yet more than a quarter of the English torture warrants were issued in cases that we should call ordinary crime: murder, robbery, burglary, horse stealing.

The history of the use of torture in England has been carefully’ studied only once, in a remarkably’ sophisticated little monograph published in l837 by the legal antiquary David Jardine.⁸He based his account entirely on original sources, the Privy Council registers and the State Papers Domestic, which were then unpublished and uncalendared. Working from the manuscripts and without indexes. Jardine identified about two—thirds of the eighty-one cases that we have been able to locate. He established, therefore. the rough dimensions of the phenomenon: and many elements of his analysis. it will be seen, bear up in the light of the vastly greater modern understanding of Tudor-Stuart legal and constitutional history.

Jardine’s achievement was to refute the lore from Sir Thomas Smith and such that torture was ‘not used in England.” Understandably, therefore. Jardine emphasized how much torture there had been.’⁰Yet his evidence also showed that while torture had been used enough in England to contradict the boasting about its absence, still it had been too rarely used to have been a systematic part of the criminal procedure.1This paradox of steady yet infrequent use of torture Jardine left unremarked.

Later writers have exaggerated the extent and significance of torture in England.¹’ The suspicion that torture was more used than recorded used (an issue we discuss in Chapter 6). has also helped writers avoid the question why torture, once in use in England. ran so confined a course.

Peine Forte et Dure

The tendency to overemphasize the amount of torture has been helped along by imprecision. some of it willful,’²about what is really meant by’ the word “torture.” Foremost among the practices of English law with which torture is sometimes confused is the peine forte et dure.

In our own day’. when an accused felon is arraigned for trial, it is demanded of him that he plead” to the crime or crimes charged in the indictment or information. He can waive adjudication by pleading guilty, which leaves only sentencing to the court. Otherwise. he will formally’ controvert the indictment by’ entering a plea of not guilty’. The trier (prototypically the jury) then decides his guilt or innocence. Until the eighteenth century’, however, the accused had a third option: he could refuse entirely to plead. In a modem English court, if a defendant attempts thus to “stand mute,” the presiding judge will enter a plea of not guilty in his behalf. and the trial will go forward as though the defendant himself had voiced the plea. However, this solution was only devised by statutes of 1772 and l827.’~ Before 1772 the defendant’s refusal to plead prevented his trial.)

The notion that jury trial was a consensual proceeding that the defendant had a right to decline was a remnant of the peculiar circumstances through which jury trial became the predominant determinative procedure in English law. the successor to the ordeals. When the Fourth Lateran Council of 1215 destroyed the ordeals2~’ a different mode of proof had to be devised. Jury trial was already in use in English criminal procedure in some exceptional situations, as an option available to a defendant who wished to avoid the ordeals. The path of inclination for the English was thus to extend jury procedure to fill the enormous gap left by the abolition of the ordeals? But although trial by’ jury lost its exceptional character and became the regular mode of proof in cases of serious crime, it retained its con-sensual element. Because the criminal defendant had always had the right to choose jury trial. the right to refuse it was difficult to withdraw’ from him.

The government was for a time perplexed about what to do with defendants who refused to plead. hence who refused jury trial. Following some experimentation earlier in the thirteenth century, legislation in 1275 directed that they be kept provisionally in prison forte et dun’. Practice corrupted this phrase to peine forte et dure: the defendant who refused to plead to his indictment was subjected to physical coercion so terrible that it killed him if he did not relent and enter his plea.’⁵

This barbarism would surely have disappeared within a few generations as the consensual origins of jury trial receded in popular recollection, had not another factor enhanced the value of the defendant’s right to refuse jury trial. Conviction for felony entailed forfeiture of the felon’s estate. A defendant who died under the peine forte et dure was not convict, and his estate descended to his heirs. i6 A propertied defendant had, therefore, an incentive to refuse jury trial. So long as

he had not pleaded. the court could kill him, but it could not convict him.

Custom settled it that the defendant who was put to peine forte et (lure was laid over with weights that would crush him to death unless he relented. The practice came to be called pressing.” In the seventeenth century’ the defendant could be pressed to death in a few minutes.’⁷Pressing was not inevitably administered with such dispatch, however. If the crown had some interest in conducting a trial, it could protract the defendant’s suffering in order to coerce a plea. When in 1615 Richard Weston, one of the Overbury murderers, initially refused at his trial to plead, Sir Edward Coke threatened him from the bench:

For the first, he was . . . to be extended, and then to have weights laid upon him, no more than he was able to bear, which were by little and little to be increased. For the second, that he was to be exposed in an open place, near to the prison, in the open air, being naked. And lastly’. that he was to be preserved with the coarsest bread that could be got. and water out of the next sink or puddle to the place of execution, and that day’ he had water he should have no bread, and that day’ he had bread he should have no water; and in this torment he was to linger as long as nature could linger out, so that oftentimes men lived in that extremity eight or nine days.’8

Weston reconsidered and entered his plea.1”

Even in exceptional cases like Weston’s where the crown was genuinely concerned to coerce the defendant to stand trial before going to his death, we should not reckon peine forte et dure as torture. Despite fascinating parallels,²⁰there remains the crucial distinction that in the peine forte et dure coercion was not being used to extract information, to gather evidence. The peine forte et dure is best regarded as a special kind of guilty plea. The defendant under went a different mode of capital punishment in order to save his estate for his kin.²’

We saw in Chapter 1 that on the Continent the Roman-canon law of proof with its dependence on torture was the successor to the ordeals. We should notice, therefore. that in some amateur English writing the ordeals themselves have been reckoned as torture. mostly on the expansive view that anything official and painful constitutes torture.²²When someone was made to plunge his hand into boiling water or to grasp a hot iron, it may have hurt, but it was not torture. For all its evils, torture was employed in aid of a rational as opposed to a ritual mode of proof. The use of torture presupposed a legal system that wanted to base judgment on the truth and thought it feasible to get the truth in part by’ means of regulated coercion. Torture was an aid to fact-finding. The ordeals were administered by courts that did not engage in fact-finding. The ordeals were devices for obtaining the judgment of God. If the hand healed, God had adjudged the defendant innocent. The defendant was not being coerced to talk—indeed a misplaced ‘Ouch!” might violate the forms and cost him his suit.

7 Finally, torture has sometimes been confused with the afflictive sanctions. As late as the seventeenth century’ in England. traitors were still being castrated, disemboweled, and quartered, felons hanged, heretics burned at the stake;²³ lesser offenders were regularly whipped, their ears shorn, their noses slit. We repeat that no variety’ of punishment inflicted as a sanction following conviction, no matter how brutal, should be regarded as torture, because punishment is not directed to extracting evidence or information.

It should, however, be conceded that all of these practices—peine forte et dure, the ordeals, the afflictive sanctions—have this much connection to torture: they’ acclimated men to violence and suffering in criminal procedure. Torture by’ rack and manacles must have fitted more easily in a system that already’ knew the axe and the pillory.²⁴

The Jury Standard of Proof

England was ‘not very far from torture in the days when the peine forte et dure was invented.”²⁵How then did medieval England escape the Roman-canon law of torture’? Maitland’s well known account has never been doubted. The English were not possessed of any’ unusual degree of humanity’ or enlightenment.”²⁶Rather. they were the beneficiaries of legal institutions so crude that torture was unnecessary.

The Roman-canon law of evidence was devised on the Continent em of adjudication by for a system professional judges. The English substitute for the judgment of God was the petty jury, an institution that retained something of the “inscrutability”27 of the ordeals. The collective judgment of an ad hoc panel of the folk, uttered as the

voice of the countryside, unanimously’ and without rationale, seemed less an innovation than the principled law of the medieval jurists.

‘Our criminal procedure . . had hardly’ any place for a law of evidence.”²⁸In lieu of the ordeals the common law accepted “the rough verdict of the countryside. without caring to investigate the logical processes. if logical they were, of which that verdict was the outcome." 2

On the Continent, torture came to the relief of a law of evidence which made conviction well-nigh impossible. ... Luckily for England neither the stringent rules of legal proof nor the cruel and stupid subterfuge became endemic here. The jury standard of proof gave England no cause to torture. When Sir Walter Raleigh. standing trial for treason in 1603 complained that there was but one witness against him, Justice Peter Warburton replied from the bench:

I marvel, sir Walter. that you being of such experience and wit. should stand on this point: for so many horse-stealers may escape, if they’ may’ not be condemned without witnesses. If one should rush into the king’s Privy-Chamber, whilst he is alone, and kill the king (which God forbid) and this man be met coining with his sword drawn all bloody; shall not he be condemned to death?³’

To this day’ an English jury can convict a defendant on less evidence than was required as a mere precondition for interrogation under torture on the Continent.

The medieval English legal system not only presented no occasion to torture, it also developed no institutions to conduct torture. Torture is a mode of investigation conducted by public officers; “private torture” is simply trespass. Yet the Angevin system of self-informing juries required no outside officer to investigate crime and to inform the jurors of the evidence. Jurors “were men chosen as being likely to be already informed;’ ‘32 the vicinage requirement. the rule that jurors be drawn from the neighborhood where the crime had been committed, was meant to produce jurors who might be witnesses as well as triers.³³Denunciation (to the jury of accusation) and proof of guilt (to the jury’ of trial) operated informally, mostly out of court and in advance of the court’s sitting. Medieval juries came to court more to speak than to listen. Apart from the State Trials, which were of no quantitative significance, there were no official evidence-gatherers. Thus, the institutions of the English criminal process complemented the procedures: the English had no one to operate the torture chamber that they did not need.

Public Prosecution under the Tudors

When torture did appear in England in Tudor times. the procedures and institutions had changed considerably. The juries had largely ceased to be self-informing. The transformation of active medieval juries into passive courtroom triers was probably completed in the fifteenth century’, certainly by’ the early’ sixteenth.³⁴As the jurors became bare lay judges, outside officers undertook to gather and present evidence to them. Although there were earlier antecedents. this prosecutorial function crystallized in the sixteenth century the Privy Council itself took charge of investigating criminal eases tinged with high politics, a category’ much expanded after the English Reformation turned heresy into sedition. The Council sometimes undertook these criminal investigations as a body (“at the Council Board”), but more typically it delegated them to ad hoc commissions. The commissions commonly included the law officers of the crown, the attorney general and the solicitor general, who took increasing responsibility’ for courtroom prosecution when such investigations resulted in criminal trials.³⁶

Of course, the vast bulk of ordinary felony continued to be local business. The system remained rooted in private prosecution. Aggrieved citizens could inform the juries in court as in medieval times they had informed them out of court. This scheme of citizen prosecution was, however, superintended by the local justices of the peace (JPs), who were the real forerunners of the modern public prosecutor. They bound over victims and other witnesses to testify, they investigated in difficult cases, and where necessary’ they undertook courtroom prosecution—that is. they led the evidence and argued it to the jury’. In an age when courtroom procedure was informal and the rules of evidence still nonexistent, it mattered little that the prosecuting JP was usually’ a nonlawyer. Public prosecution by the JPs was systematized by statute in 1555, although it had been developing for over a century.³⁷

It should be emphasized that even after the changes in the jury’ system that led to the appearance of public prosecutorial institutions, the jury’ standard of proof remained unaltered. The principal element

unrelated suspects.’¹We have numbered the cases in sequence according to the dates of the warrants in the table at the end of this chapter.

Although the eighty-one eases constitute an incomplete data base, we think that they do not drastically understate the total. Torture in England remained a very exceptional practice of the highest central authorities> If there had been any massive use of torture before the records begin to evidence it in 1540, or after they cease to disclose it in 1640, or omitted from the records for the intervening century’, literary and other sources would alert us. The issue, therefore, is whether the use of torture averaged about one case per year over the century as the surviving records suggest. or whether it occurred at some slightly’ higher rate—conceivably’ two or even three cases per year. The precise figure really does not much matter when contrasted with Stephen’s computation that in late Elizabethan England about eight hundred felony’ convicts were executed each year.’²Relative to the thousands of felony investigations each year, the number of torture cases was minuscule. Then why and under what circumstances was torture used at all?

The Gerard Warrant

The reign of Elizabeth was the age when torture was most used in England. Of the eighty-one cases, fifty-three are Elizabethan. To illustrate torture at work we shall take in detail a famous Elizabethan case, that of the Jesuit priest John Gerard (Case 69, 1597). and compare it with the data tabulated for all the eases. The Gerard case commends itself as our model in part because we also know it from a source beyond the warrant and the related State Papers: Gerard ultimately’ escaped from the Tower and wrote an autobiography recounting his victimization.’3 We shall be discussing the warrant in Gerard’s case with a constant eye on the question how faithfully it typifies the other eighty. In this way we shall avoid rehearsing the factual detail of the whole string of eases. The Gerard warrant it will be convenient to reproduce in full:

A letter to Sir Richard Barkley, Lieutenant of the Tower, Mr. Solicitor. Mr. Bacon and William Waad, esquire. You shall understand that one Gerratt [Gerard], a Jesuit. by her Majesty’s commandment is of late committed to the Tower of London for that it hath been discovered to her Majesty’ [that he very’ lately’ did receive a packet of letters out of the Low Countries which are supposed to come out of Spain. [he] being noted to be a great intelligencer’ and to hold correspondence with Parsons the Jesuit and other traitors beyond the seas. These shall be therefore to require you to examine him strictly’ upon such interrogatories as shall be fit to be [ad ministered unto him and he ought to answer to n1anttest the truth in that behalf and other things that may concern her Majesty and the State. wherein if you shall find him obstinate, undutiful, or unwilling to declare and reveal the truth as he ought to do by his duty’ and allegiance, you shall by virtue hereof cause him to be put to the manacles and such other torture as is used in that place. that he may be forced to utter directly and truly his uttermost knowledge in all these things that may any’ way concern her Majesty and the State and are meet to be known. 1-1

Venue

The warrant to torture Gerard is typical in directing it to be done in the Tower of London. In seventy-four of the eighty-one eases venue was laid in London: the Tower in forty-eight cases, Bridewell in twenty, and other or undisclosed London prisons in six. In one early case there is no indication of venue (Case 3, 1543). In six eases torture was authorized in the localities.

Bridewell does not appear in the surviving torture warrants until June 1589.16 Thereafter for the rest of Elizabeth’s reign, it was the regular venue. The Tower. which had been the regular venue from the beginning of the records, was used only twice more in the reign .‘~ With the accession of James, Bridewell disappears from the torture warrants, the remainder all designating the Tower. No compelling explanation presents itself for the virtual disuse of the Tower between 1589 and 1603.18 In any event, sixty’-eight of the eighty’ cases with known venue designate these two London prisons, which had specialized torture equipment.’”

Only seven warrants permit local authorities to undertake torture on their own—four of them early (Cases 4. 10. 19, 23). two barely’ torture (Cases 37 and 41, which allowed youthful suspects to be whipped to make them talk), and an anomalous case directing the Lord Mayor of London to use torture on someone suspected of posting placards to incite apprentices to disorder (Case 6 I). Even in cases in which the Council authorized the use of torture to investigate local

felonies, it typically required that the suspects be sent up to London for examination under torture.

Modes of Torture

Regarding the varieties of torture instruments and the like, we incline to Pollock’s view: “‘[he details have no material bearing on the general history of the law, and may’ be left to students of semi-barbarous manners.”²⁰We pause over the subject for limited purposes.

The warrant to torture Gerard authorizes his examiners, “if you shall find him obstinate,” to “cause him to be put to the manacles and such other torture as is used in [the Tower].” The warrants commonly contain some provision that torture be used only’ if necessary, in Gerard’s case if he were “obstinate.” This is an obvious limitation: it would have been pointless to rack a man who would talk without it. A number of the earlier warrants authorize only the threat, not the application of torture.²¹Hence in some of our eighty-one eases the screws were not actually’ turned. Nevertheless, we reckon these as cases of torture. Nothing significant to legal history depends on the distinction whether the wretch was actually racked or merely put in imminent fear of it.

More often than not the warrants prescribe a particular mode of torture. in Gerard’s case the manacles, and typically’ either the rack or the manacles. Through 1588, when the Tower was the normal venue. the rack was—in the expression of one warrant— the accustomed torture.”²²For the rest of the Elizabethan period, when torture was regularly’ conducted at Bridewell, “the torture of the House’ ‘23 was the manacles. Apparently’ Bridewell was not equipped with a rack. The warrants under the Stuarts. which return venue to the Tower, mention both rack and manacles.

The manacles was the English term for the strappado—suspending the victim by’ his hands without foot support. Both the rack and the manacles involved distending the limbs, and it may’ have been that a warrant authorizing the manacles contemplated the rack as well. In William Monke’s case (Case 80, 1626). for example. the warrant authorizes the examiners to use the manacles, whereas it was later reported that the victim was “tortured upon the rack and . .. thereby utterly disabled.” In the case of Philip May (Case 75. 1603), the first warrant authorizes “the tortures of the rack.” It was superseded a day later by a second warrant whose purpose was to make a change in the examining commission,24 but which orders Max put “to the manacles or such other torture as is used in the Tower.” One is left with the impression that the Council did not much care about the choice of weapons. Often when a particular torture instrument was mentioned in the warrant, more general authority was also granted, in Gerard’s case “the manacles and such other torture as is used in that place.”²⁵

The warrants do mention other tortures. Thomas Sherwood was ordered sent ‘to the dungeon amongst the rats,” which seems not to have worked since the Council had to have him racked a couple of weeks later (Case 33, 1577). The priest George Beesley and his companion (Case 55. 1 591) were ordered confined in the Tower to the “prison called Little Ease,” a cell so cramped that the inhabitant could neither move nor stand in it.²⁶A device called Skevington’s Irons that survives in the museum of the Tower of London is not mentioned in the warrants, although other documents record that it was used in at least one of the warranted eases.²⁷It operated by compressing rather than distending the body. Perhaps King James had it in mind when he instructed the examiners of Guy Fawkes:

“The gentler tortures are to be first used unto him, el sic’ per gradus ad ima tenditur [and thus by degrees advancing to the worst], and so God speed your good work.”28

Commissioners to Torture

The Council’s warrant to torture Gerard issued to a commission of four: the Lieutenant of the Tower of London, Sir Richard Barkley; the Solicitor General. Sir Thomas Fleming; Francis Bacon (then still Mr. Bacon and without office); and Sir William Waad, clerk to the Privy Council, This group is in many respects typical.

In forty-four of the forty-eight cases where venue was laid in the Tower, the Lieutenant was named to the commission. In two early cases the Constable of the Tower, the Lieutenant’s nominal superior, was named instead of the Lieutenant.²⁹The lieutenant was not likely to have been a clever interrogator; he appears as a sideline figure in Gerard’s account of his examination, Some warrants make it clear that although the Lieutenant is associated. the other commissioners are to be the active examiners. Perhaps the Lieutenant was included

of English torture practice. We shall dispute this view’ in Chapter 7. pointing out that the warrants make no effort to comply with the Roman-canon law of proof. But although the Council was not seeking to conform to any’ such external standard for the use of torture, it does seem to have found a rough standard of its own. The Council could impose torture without fear of formal legal or constitutional restraints, but it had practical incentives to use torture sparingly. The Council did not want to frighten or alienate any’ sector of the political community’ needlessly. Just as the Council so often instructed its commissioners not to apply’ the rack when the threat alone would suffice, it was unwilling to authorize any torture casually. The contrast with ordinary common law’ procedure must have appeared constantly to the members of the Council.³⁵When, therefore, they took the exceptional step of ordering torture, it was natural for the register to reflect from time to time some element of self-justification. The standard for torture that can be inferred from the warrants is well removed from legal principle or doctrine. When the Council gives a rationale for a warrant, it seldom amounts to much more than an assertion that the Council took quite seriously’ both the offense and the circumstances inculpating the accused.

The Purposes of Torture

Gerard’s case was one of political or state crime. He was suspected of involvement in the running war of subversion that the English authorities were sure was being conducted by’ the Spanish and the Jesuits.

Political (including religious) offenders were the predominant subjects of English torture practice, although the undercurrent of torture in nonpolitical cases ran through the sixteenth century. In seven of our eighty’-one cases the warrants and other sources disclose no information about the offenses involved.” Of the remaining seventy-four. however, twenty-two cases—more than a quarter—deal with ordinary’ felony, mostly’ murder and theft.³⁷The other fifty -two cases concern state crime,~’8 the doings of priests and plotters and the like.

In cases of ordinary’ crime the purpose of torture was primarily evidentiary. One Rice (Case 25. I 567), suspected of burglary’, was ordered tortured “whereby’ he may’ be the better brought to confess the truth.” Torture of a group of suspected murderers in 1 579 (Case 36) was meant “to bring them to confess the fact, that thereupon (sufficient matter appearing) they may be further proceeded withall, according to the law.” A boy’, Humfrey (Case 37, 1580). thought to be in “privities” with the culprits who burglarized the house of Sir Drue Drury, was ordered whipped to “wring from him the knowledge of the persons and manner of the robbery’, that thereupon order may be taken for their apprehension and punishment according to the laws.”

The object of torture in the cases of state crime seems more diffuse. From Gerard there was sought “the truth” about his suspected conniving with other conspirators “and other things that may concern her Majesty and the state.” Gerard had been held in jail for three years before he was put to torture,³⁹during which time he could easily have be en prosecuted to his death for violation of the statute forbidding priests to stay in England.⁴⁰According to his autobiography’, his examiners were primarily’ concerned to discover the whereabouts of Father Henry’ Garnet, the Jesuit superior in England.⁴’ In the ease of Edmund Peacham (Case 77, 1615), the interrogatories have survived upon which the old clergyman was examined. Their main purpose is to discover accomplices and threatened sedition:

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 herein?

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?⁴²

Peacham’s supposedly treasonous writings had been discovered in his home in the course of a disciplinary’ proceeding against him in the court of High Commission. The writings alone were sufficient to condemn him for treason, it was held,”’ and he was convicted (he died of jail fever while awaiting execution). Again, torture was not really directed to gathering evidence for the trial.

For most of the earlier cases and some of the later ones the sources do not disclose enough of the detail that was known against political prisoners to permit us to say whether they could have been convicted 89 90 without evidence secured through torture. Certainly many’ were doomed when they were apprehended. including such famous torture victims as John Hodgkins, the Marprelate printer (Case 52, 1589). and Guy Fawkes (Case 76, 1605). So was the pathetic prophet William Hacket (Case 56, 1591). who mounted a cart in Cheapside, the main thoroughfare of London, declared himself to be Jesus Christ, and denounced “the Lord Chancellor and the Bishop of Canterbury. whom they called traitors to God and the realm.” The Elizabethan Council had no tolerance for such things. It ordered Hacket tortured “to utter and discover the bottom of his wicked and devilish purpose and the names of those that were authors, abettors or any wise privy to those his lewd intentions and doings....” He was convicted and executed, but no further evidence was needed when torture was ordered. Torture was used not to procure courtroom evidence against the accused, but on the chance that accomplices and wider designs might be revealed; Likewise. the statute of 1584 - 85 that made it treason for Jesuits and other priests to remain in the realm made apprehension tantamount to conviction and eliminated the need to torture them for evidence.

The distinction between torturing for judicial evidence as opposed to other information was probably unimportant to the Council, although by the time of Peacham’s case it had been casually formulated by Bacon (in a memorandum for King James): “In the highest eases of treasons, torture is used for discovery, and not for evidence.”” The Council used torture to protect the state. Mostly that meant preventive torture to identify and forestall plots and plotter’ 7, Nothing kept the information thus extracted from being used at trial if it were needed, although there was a risk that an accused might persuade a jury that a statement made under torture was false.⁴⁵Given the amount of torture that was authorized in these political cases, it is noteworthy that we know of so little evidentiary use. For that the explanation is doubtless still the ancient one that a jury could convict on scant evidence, and in treason cases the pressure to convict was intense.⁴⁶Judicial torture was still unnecessary.

In the many cases of ordinary’ crime, however, torture for evidence-gathering seemingly had some utility. It remains to ask, therefore, in Chapter 7 how contemporaries justified the use of torture, and why under the supposedly absolutist early Stuarts torture in England came to an end.

The Table of Warrants

Case number. The English torture warrants are listed below in the table (pp. 94-123) in chronological sequence. We have numbered each “case.” Normally each warrant constitutes a separate case, but in some instances where two or three warrants issued to investigate the same offense (e.g., the Ridolfi Plot, Case 28) or offenders (e.g., Edmund Campion and companions, Case 42) we have treated multiple warrants as a single case. In these instances we list the warrants individually (e.g., 42A, 42B, 42C). The figures in parenthesis in the “Case Number” column are the numbers assigned by Jardine to those of the warrants that he knew and reprinted in the appendix to his monograph. The notes to the table (infra pp. 192—205) contain an entry’ for each of our numbered cases, citing at minimum the sources of the warrants.

Suspects. The spelling of proper names has been modernized in relatively’ clear cases (e.g., Nichols for Nycholls, Heath for Hethe). We have not eliminated the terminal e (e.g., Browne. Frenche) unless the sources are inconsistent and use both forms (e.g.. Bradshawe and Bradshaw in Case 67), in which instances we use the shorter. A few of these names (and some other data in the table) are derived not from the warrants, but from related documents, cited in the notes to the table. In eases involving several suspects we give the names in the order in which they are set out in the warrants. Following the table is an alphabetical listing of all named persons ordered tortured (infra pp. 124—125), cross-referenced to the case numbers in the table.

Commissioners to torture. The information in this column in the table has been supplemented considerably from sources beyond the warrants. The warrants frequently’ designate some examiners by’ office alone (e.g., the Lieutenant of the Tower, the Lord Chief Justice). We have generally been able to identify these officers. We show’ the names in square brackets. Spelling has been conformed where possible to the Dictionary of National Biography, Foss’s A Biographical Dictionary of the Judges of England, or Foss’s Tuba/ac Curia/es; or to the variant preferred in the indexes to the published Privy Council registers. Omitted Christian names have been supplied in some cases, and these we do not show in brackets. We have 91 92 deleted titles of address (e.g.. Sir. Dr., Mr.) and appositives of rank (e.g., esq., gent.,)’ but we have retained titles of nobility. We list the commissioners in the order in which they are designated in the warrants. An alphabetical compendium of all named examiners (infra pp. 125—127) is cross-referenced to the case numbers in the table.

Certain officers recur among the commissioners. We have established abbreviations for these titles of office. and we have interpolated them in the table in eases where the warrants give only the proper names. We also show which examiners were members of the civilians’ inn, Doctors’ Commons. The abbreviations:

AG Attorney General

CPC Clerk of the Privy Council

CT Constable of the Tower of London

DC Member of Doctors’ Commons

JCP Justice of Common Pleas

JQB Justice of Queen’s Bench

LCJ Lord Chief Justice

(of King’s [Queen’s] Bench)

LT Lieutenant of the Tower of London

NIR Master of the Rolls

RL Recorder of London S Serjeant at Law

SG Solicitor General

SS Secretary of State

We preserve without abbreviation other titles of office used in the warrants, save in a few cases where the officer also has one of the above abbreviated titles (e.g., Ralph Rokeby, identified as Master of St. Catherine’s Hospital in the warrants, shown as member of Doctors’ Commons, Cases 45, 52). We show only the more important title when the examiner held two or more, hence Attorney General or Recorder of London in preference to Serjeant.

In order not to clutter the table with information of relatively little bearing to this study’, we have not supplied the titles of the many other dignitaries, crown servants, lawyers, and so forth when the warrants omit to mention them. By emphasizing officeholders we do not intend to slight the all-around Tudor statesmen (e.g., Thomas Bodley, Henry Killigrew, Richard Martin, Thomas Randolph. Ralph Sadler, Thomas Smith) and handymen (e.g.. Thomas Norton, Richard Topcliffe, Richard Young) who also figure prominently’ in the commissions. In contrast to the torture victims, very few of the examiners are unknown figures; the JJNB, Foss, the Council registers. and the calendars to the public records identify most. We disclose in the notes to the cases when we have resorted to unconventional sources to identify’ the proper names or offices of commissioners. Members of Doctors’ Commons have been identified through the kindness of G. D. Squibb, Q.C., who is presently preparing the Register of Doctors’ Commons for publication. The manuscript is in Lambeth Palace Library.

Offense. We have not followed strictly the characterizations used in the warrants. When the facts indicate burglary although the warrant speaks of robbery, we use the former. There is no important line between the terms “sedition” and “treason,” and not much of one between those two and the term “religious.” The latter is somewhat more particular, so we use it when the sources permit. We use “treason” when the sources speak of it, and “sedition” as a catchall for crimes of state. In a few cases (e.g., Case 31) our characterization of the offense as sedition is an inference drawn more from the composition of the examining commission than the description of the suspect’s conduct.

Mode of torture. Space does not permit us to disclose whether the warrant suggests, implies, or instructs that the torture be only threatened, or that it be threatened before being applied. We have said in Chapter 6 that nothing of legal historical significance turns on such distinctions.

Notes (infra pp. 192—205). In the notes to the table we have tried to summarize, or when convenient to quote from, the warrants regarding (1) the information that is recited to justify the use of torture, and (2) the particulars sought under torture. The warrants are in the main too imprecise about these matters to make it practical to devise a tabular presentation.

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not affirmatively but defensively. it derived from the doctrine or sovereign immunity.¹’ The sovereign was immune from suit in his own courts. Not only were King and Council immune, they could immunize their agents. King and Council did not have to turn the screws in the torture chamber; they could commission delegates to apply torture. It was by warrant that they transferred their own immunity to their delegates. Without immunity the use of torture would have exposed the torturer to liability for civil and criminal trespass, and we have seen that the commissions that conducted torture usually contained a lawyer who knew well why he and his fellow commissioners might need immunity. Thus, there appears repeatedly in the warrants some phrase such as: “And this shall be your sufficient warrant for your proceedings....” “This shall be as well to you as to [the other commissioners] sufficient warrant and discharge. “12

Although the warrants usually’ contain advice or instructions for the particular examination under torture, they sometimes leave the instructions to be conveyed otherwise. In such cases the warrants are so terse that their only remaining function must have been to confer immunity. For example, in William Monke’s case (Case 80, 1626) the warrant is noted in the Privy Council register in its entirety’ thus:

A warrant to Sir Allen Apsley, knight, Lieutenant of the Tower, Mr. Serjeant Ashley, Mr. Trumbull and Mr. Mewtas [Meauty’s] or any two of them to take into examination William Monke, close prisoner in the Tower, upon such interrogatories as should be directed by the Lord Chief Justice of the King’s Bench and to use the manacles to the said Monke if in their discretions they shall think it fit and thereupon to certify’ the Board what they find.

The subsequent course of Monke’s case illustrates the effect of sovereign immunity. The Council learned that it had been mistaken in ordering Monke tortured. A thorough job had been done: Monke was under suspicion of high treason, and he was “tortured upon the rack and was thereby 'utterly disabled to maintain himself, his wife and nine children ...'" The investigation ultimately established that the documents that had cast Monke under suspicion had been maliciously falsified by a married couple named Blackborne. The Blackbornes fled into Ireland, and in 1627 Monke was seeking redress. He petitioned the Council to aid him, apparently’ inducing it to sequester and appropriate to him the rents and profits of the Blackbornes’ lands in Staffordshire while they remained fugitive. They’ were apprehended in Ireland and brought before the Council in the summer of 1628. The Council on advice of the Attorney General dissolved the provisional sequestration order and referred the parties to the court of Star Chamber for redress.’⁴In common law terms Monke’s underlying grievance was battery, trespass to his person, but he did not pursue a common law remedy. The examiners who “utterly disabled” him enjoyed the immunity of their warrant, and the Blackbornes had not participated with the directness required to sustain an action of trespass.

King and Council kept tight control over the use of torture. The warrants designate particular examiners to investigate particular suspects regarding particular matters.’⁵Even recurrent examiners such as the law officers of the crown required fresh authority in each case. The power to torture was not jurisdictionalized in England, in contrast to the pattern in Continental states. Only for the Council in Wales, the distant alter ego of the English Privy Council, is there evidence of a general grant of authority to use torture without the advance approval of the monarch or the English Council.’⁶ Holdsworth and others’⁷in “a very bad error”’⁸adduce no evidence for the contention that the court of Star Chamber used torture. Not one case of the use of torture has yet been found in all the reports, records, and treatises of the court.’⁹A recent author supplies no authority for the assertion that the court of High Commission, reconstituted in 1583, “began to use torture to extract confessions.”²⁰The suggestion that the High Court of Admiralty used torture rests on a frail inference from a source predating the known torture warrants.²’

These mistaken attributions of torture practice to the English prerogative courts probably have two sources. One is the label “prerogative,” popularized by Jardine as the basis of the power to torture. The other is the broad similarity between Roman-canon inquisitorial procedure and some features of the procedures of the English prerogative courts. The similarity did not, however, extend to torture

The Reception?

Jardine believed that the use of torture in England evidenced a borrowing from Continental practice, a reception of Roman law. This

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ing to public danger, as these ungratious persons have committed “36 Even then it was their distance from the Continental law of torture that the English thought significant.

The End of Torture

Why was there no reception? Once the use of torture was underway in England, why did it not entrench itself in common law criminal procedure? By the end of Elizabeth’s reign there were some ominous signs that the use of torture to investigate crime might be taking hold in England. In the 1580s and 1590s the torture warrants reached their peak.³⁷The contemporary understanding of the scope of the power to torture is expressed in a so-called “Book of Instructions” prepared for the Council in Wales, dated 1602, and probably compiled in imitation of the authority of the English Privy Council:

And her majesty doth by these presents give full power and authority to the ... Council ... upon sufficient ground, matter and cause to put any person that shall commit, or shall be vehemently suspected to have committed any treason, petty treason, murder, rape, burglary or other felony, or the accessaries to the same to tortures when they in their wisdoms, or discretions shall think convenient: and the cause shall apparently require the same.³⁸2

Here was sovereign authority for seemingly routine use of torture in the criminal process in Wales. In the year 1602 an observer reading this text and reflecting over recent practice in England might well have concluded that the use of torture had the future before it in English criminal procedure. He might have predicted that as the use of torture became more regular. it would have to be regulated by rule. And he might have guessed that the highly developed Continental jurisprudence of torture would in time commend itself for that task.

Yet if we look forward from 1602, we can say that torture was about to disappear from England. We know’ of only seven cases from the reigns of James I and Charles I, and although the Council registers for 1603 - 1613 are missing we think the inference is good that we are not missing record of many’ more cases.39 All seven cases concerned state crime; the last recorded case of the use of torture to investigate ordinary felony occurred in 1597. In 1640 Charles issued the last warrant, to examine under torture one John Archer for the names of his accomplices in an attack on Archbishop Laud’s palace at La~th.~~1After 1640 torture was never again warranted in England.⁴’ The 1640 case is itself somewhat exceptional in that the warrant was royal rather than conciliar. After William Monke’s case in 1626 the Council never again issued a torture warrant. The seven Stuart cases spread over the thirty-seven years from 1603 invite comparison with the total of fifty-one cases for the preceding thirty-seven years.

At first glance it seems curious that the royal and conciliar power to examine under torture should have fallen from use in just that period of nascent absolutism when the largest claims were being made in behalf of royal and conciliar governance. What is still more odd is that this should have happened without any struggle, indeed even without discussion.⁴²In the 1620s when the Council was issuing its last torture warrants, other matters affecting the liberty of the subject were being intensely debated in the movement that culminated in the Petition of Right of 1628. The Petition remonstrated against the King and Council for denial of habeas corpus (that is, for detention without cause shown), and it protested the extension of martial law to civilians. Yet neither in the Petition nor in the published parliamentary diaries” of the time is there any’ mention of the use of torture.

Jardine could not bring himself to concede that the demise of torture was occurring under the early’ Stuarts. He supposed that there must have been a quantity of unrecorded cases up to the Civil War, and he credited the elimination of torture to what he thought was the benign era in criminal procedure that began with the Interregnum.43 This invited the suggestion that the privilege against self-incrimination, which began to acquire limited recognition in the common law’ courts during the Interregnum had something to do with the disappearance of torture. Wigmore observes that the practice of examining “political offenders [under torture] was absolutely inconsistent with the recognition of a privilege against self-incrimination; and it is highly’ significant that the last recorded instances of torture . . and the first instances of the established privilege ... coincide within about a decade.”⁴⁷

We do not think that this fortuity of timing was “highly’ significant.” Of course, the use of torture to make someone talk does indeed disregard or override any claimed right not to talk. Where the

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privilege against self-incrimination in its developed form is given effect, evidence extracted by torture is excluded. We doubt, however, that the appearance of the privilege against self-incrimination in any sense caused the disappearance of torture. The privilege had no currency’ in the Jacobean period when the decline in torture set in. Moreover, especially in the seventeenth century’ cases, torture was not primarily’ used to gather evidence against the person tortured, but to identify’ accomplices and to forestall future sedition. Self-incrimination was not in question. Finally’, even in a case in which a victim were being tortured for self-incriminating evidence, he would have had no effective means of vindicating his claimed privilege. Supposing him to have said to his examiners as they’ strapped him on the rack, “What about my’ privilege against self-incrimination?” he would not have received a very satisfying response. The Council’s warrant immunized the examiners, and for decades after the use of torture ceased in England there was no judicial recognition of a right to have evidence of involuntarily uttered statements excluded from the jury. 4

We are particularly concerned to understand why the use of torture disappeared in cases of ordinary felony, that is, crimes without evident religious or political overtones. These cases appear steadily’ from the 1550s through the 1590s, In the last of them (Case 71, 1597) the Council was investigating the murder of Richard Anger “a double reader of Gray’s Inn.” The warrant explains that because it “is so horrible that an ancient gentleman should be murdered in his chamber it is thought meet that the manner of this foul murder should be by all means found out ... and who were [ac]complices and privy to this confederacy....” The Council ordered Richard Anger, son of the victim, and Edward Ingram. porter of Gray’s Inn, put to the manacles, as “there are great presumptions” that they were the murderers. Such eases would never be lacking. Why’. then, was this the last to be investigated under torture’? Why did the use of torture in cases of ordinary’ felony my, once underway’, not entrench itself in common law criminal procedure?

Whereas criminal prosecution was mainly’ local business in England, the use (If torture was exclusively⁴⁹central business. During these years when it appears that torture might have become routinized in English criminal procedure, the Privy Council kept the torture power under careful control and never allowed it to fall into the hands of the regular law’ enforcement officers. We have pointed out in Chapter 6 that the Council typically confined its torture practice to London; when it was persuaded to use torture in cases of ordinary crime, it ordered provincial prisoners sent up to London for examination. More fundamentally’, we have said, the power to torture was never jurisdictionalized: no law enforcement officer, no law court acquired the power to use torture without special warrant. Thus, although torture was sometimes used in cases of ordinary felony’, it was never an ordinary procedure.

Indeed, there is some risk that we are being misleading in speaking of the use of torture in cases of “ordinary” felony. These cases were ordinary in the sense that they did not involve crimes of state. They were hardly’ ordinary criminal proceedings, however, precisely because the Privy Council did intervene in the investigations. Sometimes the initiative for the use of torture seems to have come from the local law enforcement officers, who procured the Council’s warrant.~0 More often it appears that the Council intervened at the behest of some well-placed complainant, as when torture warrants issued to investigate “the robbing of the Lady Cheek” (Case 44, 1586), or “the robbery committed on our very good lord the Lord Willoughby of his plate” (Case 51, l589).

Why was torture not jurisdictionalized in England? Why was the requirement of conciliar warrant not relaxed, in order to extend the use of investigation under torture to the many cases of robbery and murder that could not come to the attention of the highest political authorities’? Under Mary and Elizabeth the Council used torture too often for us to believe that there were yet many qualms about its unreliability or inhumanity. We think, therefore, that the answer is to be found in institutional factors. By the time the Council began to make steady use of torture, the English were already committed to a prosecutorial system to which they could not entrust the power to torture.

In the sixteenth century as in the thirteenth. the English were still operating a nonbureaucratic criminal procedure. As jury trial changed character and the juries ceased to be self-informing, a prosecutorial system had been grafted on the medieval jury procedure. There were now official evidence-gatherers, the local justices of the peace, who reinforced the ongoing system of private prosecution, binding over victims and witnesses to prosecute, occasionally investigating and leading prosecution evidence to the jury.⁵²But they were unpaid amateurs, and it would have been unthinkable to allow 137 138 them to operate torture chambers of their own. The Continental jurisprudence of torture presupposed a judicial bureaucracy’ .~‘ The country’ gentlemen and urban aldermen who constituted the English prosecutorial corps were men of independent means and stature, not hirelings. They were prone to faction and notoriously difficult for the central authorities to control)”

The prosecutorial system that the English patched together in the sixteenth century had many imperfections, but it proved adequate for its basic task. In the bulk of cases it assured a sufficient flow’ of evidence for the now passive trial jury. TO be sure, there were always cases in which investigation under torture might have been useful in gathering evidence for the jury. But they’ were not numerous enough to entice the English into constructing a costly system of professional prosecution.

The Renaissance English did not develop a professional prosecutorial corps to whom the power to torture could be confided for the same reason that they had not developed a system of judicial torture in the Middle Ages: the jury standard of proof made it unnecessary’ to provide for extensive and refined evidence-gathering. An English jury could still convict on whatever evidence persuaded it, it could still convict on less evidence than was required as a precondition for investigation under torture on the Continent.

It is considerably harder, although for our purposes less important. to explain why the use of torture subsided and finally ceased in cases of state crime. Certainly a major cause was that, for a variety of reasons,5~ the relevant category of menacing political and religious crimes declined after the first years of the reign of James I. James’s coronation put an end to the conniving about royal succession that had troubled English politics since the time of Henry VIII. The Peace of 1604 ended hostilities and largely eliminated the threat of subversion promoted from Spain. The aborted Gunpowder Plot of 1605 discredited the Catholic cause and demoralized the Catholic minority in England. bringing to an end the Elizabethan epoch of domestic Catholic intrigue against the state. The growing Puritan opposition was not linked to hostile foreign powers and did not threaten violent methods.

Torture did not disappear under the early Stuarts as a result (If legislation or royal decree, nor did the Council make any formal decision to discontinue its use.⁵⁸ In this sense, seventeenth-century England did not experience any counterpart to the eighteenth-century Continental abolition movement, and we have only the record of the cases themselves from which to trace the ultimate surcease.

Two of the cases of torture under the Stuarts date from early in James’s reign and may’ fairly’ be grouped with the late Elizabethan sedition cases.⁵⁷The last cases in which the Privy Council 58 ordered torture after the Gunpowder Plot, four in all, are a sorry’ lot. Peacham’s case (Case 77, 1615) seems to have been a vendetta of James’s.⁵⁹,The suggestion to torture Samuel Peacock (Case 78. 1620), a former schoolmaster alleged to have attempted “to infatuate the King’s judgment by sorcery”⁶⁰may have originated in an obsequious letter from Bacon to James.⁶’ Not much is known about the last Jacobean case; James Crasfield (Case 79, 1622); apparently, he had predicted a rebellion.’62 The one case of’ torture ordered by’ the Council under Charles 1 was that (If William Monke (Case 80, 1626), previously discussed, in which the Council found that its torture victim had been framed and was in fact innocent of the suspicion of treason cast upon him. With the level of intrigue having subsided, the Council may have learned from these cases a couple of lessons long familiar on the Continent: that investigation under torture was a dangerous business, and not necessarily a very’ productive one. In 1628 the Council considered torturing John Felton, the assassin of the Duke of Buckingham, to discover whether he had accomplices, but ultimately’ decided not to do it.’63

We can understand, therefore, why the Parliament of 1628, in debating the liberty of the subject, could ignore the use of torture. Torture was falling into desuetude. And since the Tudor precedents amply supported the crown’s power to use torture,⁶⁴the whole matter was best left to slumber. The Parliamentarians who promoted the Petition (If Right had scant reason to fear the application of torture to themselves and their ilk.’ Even at its peak the use of torture had been confined to two sorts of victims, neither with any following in the House of Commons: suspected seditionists, especially Jesuits; and some suspected felons, mostly of the lower orders.

For the future of common law criminal procedure, ‘the English experiment with torture left no traces’ Torture was never more than a sideline of the Privy Council. So long as the Council was operating a torture chamber to investigate crimes of state, it was sometimes induced to use torture to help clear up the odd case of ordinary felony. There had been no barrier to this parasitic usage, but also nothing to sustain it once the level of state crime subsided.

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20. The essential similarity’ is that in the course of displacing the ordeals both the Roman-canon law of proof and the English common law granted to criminal defendants an overbroad procedural right—the two-eyewitness rule on the Continent, the right to refuse jury trial in England. From the thirteenth century to the eighteenth, both systems effectively withdrew these overbroad rights by’ coercing defendants to waive them. Neither system permitted unrestrained coercion; each required a finding of probable cause as a precondition for the use of coercion (the half-proof of Roman-canon law, the indictment of the English jury’ of accusation). The key difference is that the English were forcing consent to a less central matter: not to the merits, but to the mode of proof. Whereas judicial torture on the Continent was designed to overcome the established standard of proof, the peine forte et dure was meant to bring into operation the established standard of proof. We are about to remark, text at notes 25—31, that it was precisely this standard of proof, the jury standard, that spared England from a true system of judicial torture.

Another instructive parallel between the Continental practice of torture and the English peine forte et dure is that neither applied to petty crime; in both systems the overbroad procedural right governed cases of capital crime only. We have seen in Chapter 1 that the two-eyewitness rule did not pertain to so-called delicta levia. Likewise, the English recognized no right of refusal to plead in cases of misdemeanor. See Blackstone IV:320; Sir Matthew Hale, The History of the P/eas of the Crown (S. Emlyn. ed.) (London, 1736; posthumous first ed., Hale died in 1676)11:320. We have shown in Chapter 3 that when the Europeans rid themselves of judicial torture by undermining the two-eyewitness rule, they did it by’ extending the lower standard of proof that had always pertained to delicta levia. Likewise, when ^4heEnglish abolished the peine forte et dure in 1772’s they’ extended to felony the rule that they had always followed for misdemeanor: willful refusal to plead became equivalent to conviction. See Blackstone, supra: 12 Geo. III c. 20 (1772). The modem rule, treating refusal to plead as though it were a plea of not guilty’, was enacted by 7 & 8 Geo. IV c. 28 (1827).

21. Sonnenfels’ famous abolitionist tract, discussed supra Chapter 4, makes the point that the English peine forte et dure is really a mode of punishment, not of torture. Josef von Sonnenfels, Ucher die Abschaffrng der Tortur (Zurich, 1775 ed.) 13 & n.

22. E.g., Parry, supra note 12, at 88.

23. The Unitarians Bartholomew’ Legatt and Edward Wightman, executed in 1612, were the last heretics to be burnt alive. See Howell 2:727; ...Jacobean Pageant (New York, Atheneum ed., 1967) 311. For the traitors’ deaths of the Gunpowder Plotters see Howell 2:215—218.

24. The systematic infliction of pain, be it torture or punishment, in criminal procedure seems inconsistent with our conception of the vaunted humanism of the Renaissance. How, we wonder, could Francis Bacon (Chapter 6, text at note 31; ef, Chapter 7, text at note 60) be an eager participant in investigation under torture? It may be that the tortures and punishments of the age seemed less cruel to contemporaries. We must bear in mind that no aspect of the human condition has changed so greatly in the twentieth century as our tolerance of pain. The common pain-killers and anesthesia have largely eliminated the experience of pain from our lives. In disease, childbirth, surgery’, and dentistry, our ancestors were acclimated to levels of suffering we find incomprehensible. Cf. Ernst Boehm, “Der Schoppenstuhl ze Leipzig und der sachsische Inquisitionsprozess im Barockzeitalter,” Zeirsc’hrift fir die gesamte Srrafrechtswissenschaft, 61:300. 378—380 (1941).

25. Maitland 11:659.

26. Id, at 11:660.

27. “Like the ordeals, the jury also was inscrutable.” T. F. T. Plucknett, Edward I and Criminal Law (Cambridge, 1960) 75.

28. Maitland 11:660,

29. Id. at 11:660—661.

30. Id. at 11:659—660.

31. Howell 2:1, 18. English law experimented with a two-witness rule for treason, and Raleigh was trying to invoke it. During the Marian/Elizabethan period when most of the English torture cases occurred, the two-witness rule was treated as having been repealed by the statute of I & 2 P. & M. c. 10 (1554—1555). John H. Wigmore, A Treatise on the Anglo-American System of Evidence (Boston, 1940 ed.) VII:§2036. at 263—268, esp. 263 n.3 [hereafter cited as Wigmore].

It is an instructive coincidence that Warburton’s example of a murderer caught exiting with a bloody sword was precisely the case urged among some Roman-canon jurists to support an exception to the general two-eyewitness rule in cases of especially cogent circumstantial evidence. See supra Chapter 1, note 4. Wigmore believed that there was a “conflict of the common law and the ecclesiastical system” in the sixteenth and seventeenth centuries by which England risked adopting the Roman-canon system of quantitative proofs. Wigmore VII:§2032, at 247. His evidence is very slender and it appears that he was misled by “Professor F. W. Maitland’s enlightening essay, English Law and the Renaissance (Cambridge,] 1901).” Wigmore VII:§2032, at 248 n. 18. Wigmore seems not to have known of Holdsworth’s convincing refutation of Maitland’s thesis. Holdsworth IV:217—293; see also Samuel E. Thorne, “English Law and the Renaissance,” in Atti del primo congresso internazionnale del/a societe italiana di storia del diriuo (Florence, 1966)

437—445’

32. Thayer, supra note 14. at 90.

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33. See Maitland 11:622—625. “Indeed it is the duty of the jurors, so soon as they have been summoned, to make inquiries about the facts of which they will have to speak when they come before the court.” Id. at H:624—625.

34. See Langbein. PCR 118—124.

35. Langbein, “The Origins of Public Prosecution at Common Law,” American Journal of Legal History’ 17:3 13 (1973): Langbein, PCR 1—125. 202—209, 248—251.

36. See Langbein, Origins, supra note 35, at 315—317. It is remarkable how little is known about the emergence and the activities of the law officers of the crown in Tudor-Stuart times. See generally Holdsworth VI:457—472: L. J. Edwards, The Law Officers of the Crown (London, 1964).

37. Sources cited supra note 35.

The proposition is there developed that the English elaborated a prosecutorial system operated by the justices of the peace (JPs) on the basis of the statutes of 1 & 2 Philip & Mary c. 13 (1554—55) and 2 & 3 Philip & Mary e. 10(1555). This analysis has been widely endorsed by reviewers of Langbein, PCK, although Dr. J. H. Baker has resisted it on what amounts to a definitional ground. Reviewing the book in English Historical Review 91:192, 193 (1976). Dr. Baker takes exception to the view expressed in the book that the JPs “orchestrated” prosecution at trial. Dr. Baker has explained (in correspondence with the author) that he believes that the book understates the role of the clerks of quarter sessions and assizes in processing routine eases at trial.

Dr. Baker’s point is well taken, and although it should have been implicit from the book, it was certainly not explicit. By 1660, for example, when the Clerk of Assize manual gives us good narrative evidence, it was routine for the examining JP to surrender his pretrial depositions to a clerk in advance of the trial, “and if h be Evidence for the King, [the Clerk] readeth it to the Jury.” T. W., The Clerk of Assize.. , (London, 1660) 14.

The book emphasizes that the central concern of the Marian legislation was to develop the pretrial prosecutorial role of the JP, In the ongoing system of citizen prosecution at trial, it would ordinarily suffice for the JP to bind over the citizen accusers and any other witnesses whom the JP may have located in more active investigation. E.g., Langbein, PCR 39. “In this way the Marian scheme was making the JPs into back-up prosecutors. Private citizens, now’ bound by recognizance as required by the Marian statute, would continue to prosecute most cases.” Langbein, Origins, supra note 35, at 323.

Although “The JP’s forensic role at trial was exceptional,” Langbein, PCR 51, it is manifest in the sources there discussed and has not been controverted. Dr. Baker, now seconded by’ J. S. Cockburn, “Early-Modem Assize Records as Historical Evidence,” Journal of the Society of Archivism 5:215, 226—27 (1975). is emphasizing the corollary—that in the ordinary₁ cases in which the JP’s prosecutorial work did not require him to take up a₄ forensic role at trial, a clerk could work from the JP’s pretrial documents in₁ the courtroom and call citizen prosecutors to give their evidence without the participation of the JP.

38. See. e.g., C. L’Estrange Ewen, Witch Hunting and Witch Trials (London. 1929) 98—111 (indictments contrasted with convictions and executions in witchcraft cases, 1558—1736); Joel Samaha, Law and Order in Historical Perspective (New York & London, 1974) 120-133 (acquittal figures for Elizabethan Essex).

39. Case 26. Case numbers are discussed at page 91.

Chapter Six

1. For 1540—1542: Proceedings and Ordinances of the Privy Council England (H. Nicolas, ed.) (London, 1837) VII. For 1542—1602: Acts of the Privy Council of England (J. R. Dasent, ed.) (London, 1890—1907) I hereafter cited as APC]. For 1613—1629: Acm’s of the Privy Council of England (London, 1921—1958) [hereafter cited as APC (Stuart)]. For 1631—1632 (unpublished): Privy Council Registers (mierocard edition) (London. 1962) For 1637—1645: Privy Council Registers Preserved in the Pub/ic Record Office.’ Reproduced in Facsimile London, 1967—1968).

2. For 1509—1547: Letters and Papers. Foreign and Domestic, the Reign of Henry Viii (J. S. Brewer et al., eds.) (London, I862—l932~ thereafter cited as LP]. For 547—1625: Calendar of State Papers, Do mestic Series, of the Reigns of Edward VI. Mary, Elizabeth. and Jatnes R. Lemon et al., eds.) (London, 1856—1872) [hereafter cited as SPD] For 1625—1649: Ca/er~ar of State Papers, Domestic Series, of the Reig~1 of Charles I (J. Bruce, et al., eds.) (London, 1858—1897).

3. The first entry is dated August 10; Cromwell was executed on Jul 28. In the 1530s he directed much of the investigatory’ activity that later fei to the Council. See generally G. R. Elton, The Tudor Revolution in Go”’ eminent (Cambridge. 1953); G. R. Elton, Policy and Police: The Enforce. ment of the Reformation in the Age of Thomas Cromwell (Cambridge, 1972, C. R. Elton, “Why the History of the Early-Tudor Council Remains Un, written,” Anna/i del/a fondazione italiana per Ia storia amministrativa CMi.. lan, 1964)1:268. 290ff.

4. Infra notes 8—9.

5. The legend was current in Coke’s time that the rack was first brought to the Tower of London by John Holland, the Duke of Exeter. who was constable of the Tower in the reign of Henry VI (1422—1461). Sir Edward

187

192

Relations.” in Elizabethan Government and Society’.’ Essays Presented to Sir John Neale IS. T. Bindoff et al., eds.) (London. 1961) 21, 37 (footnotes omitted). (I owe this reference to Professor G. R. Elton.) Norton’s draft is reprinted in William D. Cooper. “Further Particulars of Thomas Norton,” Archaeologia 36:105, 116 (1855).

36. Cases 6, II. 15. 21, 24, 34. 35.

37. Murder: Cases 8. 16. 29, 36. 71; robbery’, burglary and theft: Cases 5, 12. 13. 14. IX. 22. 25. 32, 37, 44, 51. 54, 65: counterfeiting: Cases 10, 20; and in Case 19 the “riot and disorder .. upon the goods and corn of Jane Stourton.”

38. We reckon among the state crimes several arguable cases, including four of theft touching royal interests: Cases 2. 9, 17, 70: also Case 4, which seems to have involved a search for plate forfeit to the crown; and Case 66, an investigation of the activities of a Gypsy band.

Five of the six apparently authoritative eases of torture for which evidence of warrants does not survive. supra note 8. also involved state crime.

39. Gerard, supra note 13, at 65.

40. 27 Eliz. e. 2 (1584-1585).

41. Gerard, supra note 13, at 107. See also Philip Caraman, Henry Garnet (1555—1606) and the Gunpowder Plot (‘London, I 9M) 230ff.

42. Spedding V:90—94. The results of the examination, as reported by Sir Ralph Winwood, one of the commissioners: “Upon these interrogatories, Peacham this day was examined before torture, in torture, between tortures, and after torture. Notwithstanding, nothing could be drawn from him, he still persisting in his obstinate and insensible denials, and former answers.” Id. at 94; see generally DNB 15:576—578.

43. Cro. Car. 125. 79 Eng. Rep. 711 (1615).

44. Spedding 3:114.

45. Raleigh tried it. Howell 2:1, 22 [1603]: so did Thomas Tonge, Howell 6:225, 259 [1662], cited by Wigmore IlI:§8l8, at 295 n.7.

46. The only treason acquittal in the State Trials for the century 1 540— 1640 is Nicholas Throckmorton’s case, Howell 1:869 [1544]. The ease with which a ease could be trumped up, for example, against Campion or Raleigh. shows how well the crown could manipulate the ordinary’ criminal procedure without need of evidence gathered under torture.

Notes to the Table (pages 94—123)

Case 1. Warrant: Proceedings, etc. (H. Nicolas, ed.), cited supra Chapter 6, note 1. at 7:83; ef. id. at 7:81, 194. Thwaytes is identified as ‘servant unto [blank] Shrington, page of the King’s wardrobe of robes....” He had already confessed the words charged against him and was being ordered tortured to reveal “of whom he had heard the things confessed.” A later entry, dated May 25. 1541. records that he was released. “having a good lesson given him to use his tongue with more discretion hereafter.” Id. at 194.

Case 2. Warrant: LP 16:588. The document is a report from the Council in London to the Council with the King, reporting proceedings undoubtedly warranted by the former.

Case 3. Warrant: LP 18(pt. l):157; ef. id. at 18(pt. 1):35—36, 115, 134, 137—1 38.

Case 4. Warrant: APC 3:106; ef. id. at 3:99. The examiners were searching for money supposedly hidden in Fowlkes’ house. Fowlkes is reported accused by “one William Haldesworthe, lately executed at York,” which suggests that the concealed trove may have been forfeit to the crown. The two examiners are listed as JPs for Norfolk as of 1547. Calendar of the Patent Rolls J547—1548 (London, 1924) 87.

Case 5. Warrant: APC 3:230. Torture is only conditionally authorized. Hungerforde is directed to “proceed against [Reede] by the law, unless he be afraid of bearing in that behalf [i.e., unless he doubts he has sufficient evidence to induce a jury’ to convict; in which case he shall advertise and order shall be given that [Reede] may be sent up hither to be put to torment.” We reckon Hungerforde as the commissioner to torture with hesitation; it seems he might not have been meant to conduct the examination under torture. but to decide whether to have it ordered.

Case 6. Warrant: APC 3:407.

Case 7. Warrant: APC 4:171; cf. id. at 4:143. 154, 155, 336. The warrant does not disclose Holland’s offense, but he appears to have been involved with one Thomas Thurland. who was being investigated “for certain seditious reports.” Id. at 4:143.

Case 8. Warrant: APC 4:201.

Case 9. Warrant: APC 4:284; ef. id. at 4:287. Because the two men “obstinately refuse to confess the truth of their doings,” they are ordered sent up “to the end [that I they may be here further examined and put to the torture, if need be, to the example of other[s].” It is not clear whether the Council thinks that the use of torture will serve a general deterrent purpose. in which case that fact would have had to be publicized; or whether it is the ultimate conviction (If the men that will be “to the example of other[s].”

Case 10. Warrant: APC 5:93. This is one of the few cases in which local officers are authorized to examine under torture locally. It seems quite improbable that the city of Bristol had its own rack, hence the term may already have become a metaphor for any mode of torture. The mayor is identified in William Adams, Chronicle of Bristol (Bristol. 1910 ed.) 103. It is there recorded that on April 4, 1555, “four men were hanged. drawn and quartered in Bristol for coining of money. viz: John Walton. Robert Haddy, Gilbert Sheath and John White.”

193

206

“The king can do no wrong.” Blackstone 1:238. “FN]o court can have jurisdiction over him.” Id. at 1:235.

12. Cases 72, 81.

13. APC 11:320; cf. SPD 11:517.

14. APC 11:488—489. On conspiracy’ and false accusation as a head of Star Chamber jurisdiction. see William Hudson, A Treatise on the Court of Star Chamber ttemp. Chas. I], printed in Col/ectanca Juridica (F. Hargrave. ed.) (London, 1792) 11:104-107. The recently published List and Index to the Proceedings in Star Chamber for the Reign of James I (T. G. Barnes, ed.) (Chicago, 1975) does not reach 1628. date of the reference in this ease.

15. The draftsmanship of some of the earlier warrants was sloppier; although particular offenders were meant, they’ were not always precisely described.

16. Text at note 38.

17. Holdsworth V: 185; Sir Almerie Fitzroy. The History of the Privy Council (London. 1928) 122; James Williams, “Torture,” Encyclopedia Britannica (11th ed., New’ York, 1910-1911)27:72.75; Leonard W. Levy’. Origins of the Fifth Amendment (New York, 1968) 34-35.

18. G. R. Elton. The Tudor Constitution (Cambridge, 1965) 170 nI.

19. See, e.g.. Hudson’s authoritative treatise on Star Chamber procedure, supra note 14. There may have been instances in which information gathered by torture ultimately figured in Star Chamber proceedings. The warrant in Case 19 (1557) directs Lord St. John, Lord Lieutenant for Dorset. to use torture to identify, apprehend. and indict the persons responsible “for the riot and disorder of late committed upon the goods and corn of Jane Stourton.” and also “to signify the same with the examinations he shall take of them into the Star Chamber at the beginning of the next Term.” presumably in aid of restitutionary remedies there.

It is crucial to bear in mind that Star Chamber lacked capital jurisdiction. and in England (as on the Continent) torture was used only in capital eases: felony and state crime. The only seeming exception among our eighty-one English eases is this Case 19, and here too the “riot and disorder” may have involved grand larceny or some other common law felony. See Hudson, supra note 14, at 224—225, for a catalog of Star Chamber sanctions, all noncapital. ‘f he “jurisdiction of this court ... in punishment.” says Coke. “extendeth not to any’ offense that concerns the life of man or obtruncation of any member, the ears only excepted, and those rarely and in most heinous and detestable offenses.” Sir Edward Coke, The Fourth Part of the Institutes of the Laws of England (London, 1797 ed.) *66.

20. Anthony Granucci, “‘Nor Cruel and Unusual Punishments Inflicted’: The Original Meaning,” California Law Review 57:839, 848. There is evidence that Archbishop John Whitgift employed torture in his capacity as Vice President of the Council in Wales before he took over the Court of High Commission; see infra note 38.

21. Supra Chapter 6, note 5.

22. The Duke of Exeter “and others, intended to have brought in the civil laws. For a beginning whereof. the duke ... first brought into the Tower the rack or brake allowed in many eases by the civil law....” Coke, supra note 2, at *35; see supra, Chapter 6, note 5.

23. Blackstone, IV:320—321.

24. Holdsworth V:184-187, 194-195.

25. The prerogative theory and the reception theory are intertwined in the literature (and have been since Coke’s Third institute). Both notions put distance between the common law and the torture practice that occurred. Jardine’s interpretation wanders indistinctly from prerogative (Jardine 58—64) to reception (id. at 64-67) to prerogative (id. at 67—70).

Jardine was misled by an apparently fortuitous lacuna of his sources to make a wholly spurious argument in support of the prerogative theory; had he known the true state of the matter, he would surely’ have viewed the entire question of prerogative and reception differently’. Although Jardine knew’ about two-thirds of our eighty-one torture eases, it happens that he identified only two of those in which common law judges were named in the examining commissions. Cases 20, 24. 26, 29. and 36. in which seven judges of the common law courts were in the commissions, Jardine did not know. Either the subsequently’ published Privy Council registers were not then to hand in manuscript. or he did not read them with care.

Jardine gave great emphasis to the “circumstance” he thought he had detected “that the torture warrants were not directed to the common-law judges....” Jardine 62. He did not take note of the involvement of the Lord Chief Justice in Cases 63, 76 and 80 (see our notes to those cases). Jardine thought to distinguish the two eases in which the warrants expressly named the Lord Chief Justice. In Case 75, he noted, the first warrant was superseded a day later by a second warrant that did not name the Lord Chief Justice. “I think there is reason to believe that [the first] warrant was never actually executed.” Id. at 45. That left Case 77, which Jardine dismissed lamely’. ‘1 have not been able to discover any evidence of the actual application of torture in the case....” ld. at 52. (Such evidence is always rare; in this case there is some: SPD 10:125).

Jardine also did not ask himself whether he ought to classify the Recorder of London as a species of common law’ judge. Jardine surely knew’ that “ft]he Recorder of London, is one of the Justices of Oyer and Terminer; and a Justice of Peace of the Quorum, for putting the Laws in Execution.... And being the Mouth of the said City. he learnedly’ delivers the Sentences and Judgments of the Courts therein....” Giles Jacob. A New Law Dictivima’ (4th ed.. London, 1739) (unpaginated: see under alphabetical entry 207 208 “Recorder”) (italics original). See also supra Chapter 6. note 30.

We cannot really fault Jardine for his misreading of the evidence, which was set in motion by a dearth of other evidence for which he was probably’ not to blame. He would not have drawn such sharp lines between law and prerogative, and between common law and Roman law, had he known that common law judges and recorders sat in a quarter of the identifiable cases (20 of 81). (Curiously, no judge overlapped the recorder in these examining commissions; where the one is named the other is not.)

26. Jardine 64.

27. Case 16, “one of the Masters of Requests”; Cases 17, 21, Thomas Martin; Case 28. Thomas Wilson; Cases 45, 52, Ralph Rokeby: Cases 55, 57, Giles Fletcher. The four named examiners are identified as Masters of Requests in their DNB biographies, respectively 12:1205; 21:603, 6CM; 17 152. 7 299, 300. See generally regarding the English civilians Brian P.

Levack, The Civil Lawyers in England: 1603—1641 (Oxford, 1973).

28. Of the four named Masters of Requests, supra note 27, Mr. G. D. Squibb has identified three in the register of the members of Doctors’ Commons. Cf. supra page 93. Ralph Rokeby appears not to have been a member.

29. Cases 39, 42. 43, John Hammond; Case 77. Julius Caesar; ef. DNB 8:1131; 3:656. Hammond also figures in the torture proceedings in Case 41, discussed supra in the note to Case 41. for which we lack the warrant. Hammond and Caesar appear in the register of Doctors’ Commons.

30. Of course there were others with some Roman law training, e.g., Sir Thomas Smith.

31. Case 16 is the exception.

32. Hammond in Cases 39. 42 and 43: and Rokeby. the nonmember of Doctors’ Commons, in Cases 45 and 52. See the DNB entries for both, cited supra notes 27, 29.

33. Jardine 64.

34. See Schnapper, Peines I, at 41:249 & n.70.

35. Table Talk of John Se/den (F. Pollock, ed.) (London, 1927 ed.) 133: “The Rack is used no where as in England. In other Countries ‘tis used in Judicature, when there is a semi-plena probatio. a half proof against a man, then to see if they can make it full, they rack him to try’ if he will Confess. But here in England, they’ take a man & rack him I do not know why, nor when, not in time of Judicature, but when somebody bids.”

36 A 1)declaration of the Favourable Dealing, etc.. cited supra Chapter 6, note 35. at 1:2 12.

37. See “Torture Warrants by Year,” supra page 128. See also supra Chapter 6. note 7.

38. PROSP 46/3, loose document, fol. 5, §10; a title is inscribed on the rear cover in a later hand: “Wales—Instructions given by Queen Elizabeth to her Council within her Dominion & Principality of Wales ... 1602.” There is another copy of the document in the same box. This class of “State Papers Domestic: Supplementary” is uncalendared. (I owe this reference to Professor J. S. Cockburn and Dr. J. A. Guy.) Authority to torture appears in equivalent “Instructions” as early as 1553. Henry Williams, The Council in the Marches of Wales under Elizabeth I (Cardiff, 1958) 56 & n.58; ef. id. at 48—49, 57. 81. See, e.g., the 1574 text in Documents Connected with the History of Ludlow (London, 1841) 309. 318.

It seems that John Whitgift exercised this authority during his tenure as Vice President of the Council. He was appointed in 1557; see A Calendar of the Register of the Queen’s Majesty’ s Council in the Dominion and Principality of Wales (R. Flenley, ed.) (London, 1916) 173. In 1585, as Archbishop of Canterbury’. Whitgift was engaged in a bitter fight with Robert Beale, then Clerk to the Privy Council, over the High Commission prosecutions of Puritans. Beale, in a tract now lost, accused Whitgift of abuse in the use of torture. Whitgift expressed his anger to Lord Burghley that Beak should presume to give “a caveat to those in the Marches of Wales, that execute torture by virtue of instructions under her Majesty’s hand, according to a statute, to look unto it., that their doings be well warranted. ‘Quoted in John Strype. The Life and Acts of John Whitgjft (Oxford, 1822 ed.) 1:402; ef. id. at 1:168. The statute Whitgift had in mind was 34 & 35 Hen. VIII e. 26 (1542—1543) providing for the maintenance of a President and Council in Wales “in manner and form as hath heretofore been used and accustomed; which President and Council shall have power and authority to hear and determine by their wisdoms and discretions such causes and matters as be or hereafter shall be assigned to them by the King’s Majesty, as heretofore hath been accustomed and used.”

39. The State Papers Domestic are fuller for the Jacobean years, especially by contrast with the early decades of our period 1540—1640. The four eases known to us from the Privy Council registers after 1613 are also evidenced as torture cases in the State Papers (see the notes to Cases 77—80). Hence the inference that the State Papers for 1603—1613 from which we know Cases 75—76, are moderately comprehensive in this regard, and that if they’ were not, the literary sources of the time would warn us.

40. Case 81. In addition to the sources cited in the note to this ease, see H. R. Trexor-Roper. Archbishop Laud: 1573—1645 (London, 1940) 388; Samuel R. Gardiner, History of England from the Accession of James I to the Outbreak of the Civil War: 1603—1642 (New York, 1965 ed.) IX:141.

41. We exclude happenings in Scotland and Ireland. see sources cited in Holdsworth V: 185 n. 11. But see John Kenyon, The Popish Plot (London, 1972) 132 (Miles Prance confined to a cell called Little Ease in Newgate [sic] to make him talk; no warrant; December 1678). See also infra note 49.

42. The Continental abolitionist literature has no counterpart in 209 210 England. It seems that the closest thing to criticism of torture in the seventeenth century was Selden’s little aside, quoted supra note 35.

43. 3 Car. I. e. 1(1627 [1628]).

44. See Frances H. ReIf, The Petition of Right (Minneapolis. 1917); for a short bibliography’ of parliamentary’ diaries see Margaret A. Judson, The Crisis of the Constitution (New York, 1964) ix—xi.

45. Jardine 16, 45. 69-70.

46. See Wigmore VIII:§2250, at 267, 285—292.

47. Id.. VIII: §2250, at 287 n.89.

48. Id., III: §817—819, at 291—297 (Chadbourn rev. 1970).

49. We reiterate that coercion inflicted without authority is not for our purposes to be reckoned as torture. There is considerable evidence of brutality in provincial investigations of witchcraft cases in Tudor-Stuart times. See, e.g., C. L’Estrange Ewen, Witch Hunting and Witch Trials (London, 1929) 65ff, 314; Wallace Notestein, A History of Witchcraft in England (Washington, 1911) 174ff. Mathew Hopkins, “the great witch-finder” (id. at 205) of 1645-46 sometimes obtained confessions by keeping suspects from sleeping for several days. Id. at 167; ef. id. at 175—176. Sclt’-appointed witch-finders employed the ancient swimming ordeal, originally’ a mode of procuring the judgment of God (see Plueknett 114), as a pretrial experiment for detecting witches. Ewen, supra, at 66—69. 314: Notestein, supra. collects many references in his index (“Water, ordeal of’) at 440. Notestein emphasizes that such outbreaks of popular witch-hunting occurred mostly in periods of disorder, like 1645—1646, when central authority was preoccupied or in abeyance. Id. at 199—205; ef. id. at 313ff.

Because the witch-finders lacked conciliar authority for their practices, they were liable to civil and criminal suit. We know of several such suits. “One Joan Bibb of Rushock in Worcestershire was tied and thrown into a pool as a witch to see whether she could swim. And she did bring her action against Mr. Shaw the parson, and recovered £10 damages, 8 March 1661 .“ “Henry Townshend’s ‘Notes of the office of a Justice of Peace,’ 1661—3” (R. D. Hunt, ed.), in Miscel/any (Worcestershire Historical Society, 1967) 118 (footnotes omitted); ef. the ease of Elizabeth Stile in Somerset Assize Orders 1629—1640 (T. G. Barnes, ed.) (Frome, 1959) 28. Two men who broke into the house of a suspected witch in Somerset in 1694 and forced her to undergo the water test appear to have been prosecuted for it. “The Records of Quarter Sessions in the County of Wilts.,” in Historical Manuscripts Commission, Report on Manuscripts in Various Collections (London, 1901)1:65, 160—161, cited by Notestein, supra, at 418. Thomas Colley, a chimney sweep who conducted a witch-swimming in April 1751 at Tring in Hertfordshire during which the woman drowned. “was tried at Hertford Assizes, before Sir William Lee, and having been found guilty of murder, was sent back to the scene of the crime under the large escort of one hundred and eight men, seven officers, and two trumpetters. and was hung on August 24, 1751, at Gubblecote Cross, where his body swung in chains for many years.” Lewis Evans, “Witchcraft in Hertfordshire,” in Bygone Hertfordshire (W. Andrews, ed.) (Hull & London, 1898) 229.

Of course, it did not require witchcraft to incite some investigators to acts of illegal coercion against suspects. See, e.g., Thomas Harman, A Caveat or Warning for Common Cursitors, Vulgarly Called Vagabonds I London. 15661, reprinted in The Elizabethan Underworld (A. V. Judges. ed.) (New’ York, 1965 ed.) 61, 9 1—92 (vagabond, pretending to be dumb, forced to speak by’ being hoisted over a beam and made to hang by his wrists).

50. E.g.. Case 36.

51. Other certain instances include Cases 13, 36.

52. Supra Chapter 5, text at note 37.

53. The great theme of Offizialprinzip in the German scholarship, discussed briefly’ in Langbein, PCR 131—132, 146—148, 150, 177—178. The classic account is Eberhard Schmidt, Inquisitionsprozess und Rezepm’ion (Leipzig, 1940).

54. Sec Thomas G. Barnes, “Introduction,” Somerset Assize Orders

1629—1640, supra note 49, at xxiv—xxv; ef. id. at 12 n.2; A. Hassel Smith, Country and Court.’ Government and Politics in Norfolk 1558—1603 (Oxford, 1974) 60—61, 75ff. 181—200 passim.

55. For a concise account of these matters see G. P. V. Akrigg, Jacobean Pageant (New York, Athenaeum ed., 1967) 1—17, 60—62, 69—78.

56. Regarding the legend to the contrary surrounding Felton’s Case (1628). see note 63 infra.

57. Case 75, in April 1603, involving aspersions east on the new King, and Case 76, Guy Fawkes.

58. In Case 81 the warrant was issued by the monarch.

59. See SPD 9:273: Spedding V:90—91; DNB 15:576.

60. SPD 10:125.

61. Spedding VII:77.

62. SPD 10:336.

63. This case gave rise to a legend that has been often repeated, even after Jardine set the record straight. The talc originated in Volume I of John Rushworth’s Historical Collections of Private Passages of State, Weighn’ Matters in Law, etc. (1st ed., London, 1659). Rushworth’s sources are unknown; he was a teenager in 1628 and could not have observed the events; see DNB 17:419. According to Rushworth Felton was called before the Council, where he confessed [his motives for] the Murder. The Council much pressed him to confess who set him on work to do such a bloody Act, and if the Puritans had no Hand therein; he denied that they had.... Dr. Laud Bishop of London [William Laud, afterwards Archbishop of Canterbury] being then at the Council-Table, 211 212 told him [that] 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. Rushworth, op. cit. (London, 1721 ed.) 1:638 (italics original). It may well be that Felton’s plucky response persuaded the Council that there were no conspirators to discover, or that examination under torture would in any event be futile. Rushworth’s narrative continues. however:

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 therein, whether it be Legal or no; and afterwards his Majesty the 13th of November [16281 propounded the Question to Sir Thomas Richardson. Lord Chief Justice of the Common-Pleas, to be propounded to all the Justices, viz.... Whether by’ the Law he might not be Racked, and whether there were any Law’ against it; for (said the King) if it might not be dane by Law, he would not use his Prerogative in this Point....

First, the Justices of Serjeants-Inn in Chauncery v-Lane did meet and agree, that the King may not in this Case put the Party to the Rack. And the Fourteenth of November all the Justices being assembled at Serjeants-Inn in Fleetstreet. 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.

Id. at 1:638—639 (italics original). Blackstone gave his imprimatur to this story’, proud that the judges “declared unanimously. to their own honor and the honor of the English law, that no such proceeding was allowable by the Laws of England.” Blackstone IV:321.

Jardine disentangled the story in a brilliant bit of analysis that deserves to be reproduced:

It is, however, probable that Rushworth. who was not a professed [sic; professional’?] lawyer. and might therefore be technically inaccurate in his relation of a judicial proceeding, has mixed together two distinct occurrences in his account of this transaction. That Laud, or some of the Council, threatened Felton with the rack in the course of his examination, may readily be believed. But it is not credible that either Charles or his Council. who well knew’ the extent of the prerogative in this respect, and had actually exercised it in the case of Monke only two years before, should “fall into debate.” as Rushworth represents then) to have done, or consult the Judges respecting their power to administer the torture. . . . The course of the transaction . . . was probably thus:

Felton was threatened with the rack by’ the Council; but as he at once confessed his own offense, and there were no reasonable presumptions or indicia, that he had any confederates. there was no ground for applying the torture to him in order to extract evidence.... After his examinations, and immediately before his trial, which did not take place for more than two months after his apprehension. Felton. though at first resolute in justifying his crime, is said by several historians to have expressed great remorse, and to have requested that his hand might be cut off before his execution as a part of his punishment, “which the King.” says Whitelocke. “desired might be done; but the Judges said it could not be done by’ law, and he was hanged in chains.” It can hardly be doubted that it was on this latter occasion that the Judges resolved that “no such punishment was known or allowed by’ our law;” and this would precisely correspond with the date of the resolution as given by Rushworth. namely’, the 14th of November,—a few days only before Felton’s execution.

Jardine 60—62 (italics original). Remarkably’, Holdsworth carries forward the tale from Rushworth, remitting to a footnote the observation that Jardine “throws some discredit on Rushworth’s narrative....” Holdsworth V:186.

Whatever reservations the judges had about cutting off the hand of Felton did not restrain Chief Justice Richardson two and one half years later. “At the assizes at Salisbury in the summer of 163 1 [hel was assaulted by a prisoner condemned there for felony, who after his condemnation threw’ a brickbat at the said Judge, which narrowly missed; and for this an indictment was immediately’ drawn by Noy against the prisoner, and his right hand cut off and fixed to the gibbet, upon which he was himself immediately hanged in the presence of the Court.” 2 Dyer I 88b (Vaillant ed., 1794 ed.), 73 Eng. Rep. 416.

The John Felton in this case in 1628 is not to be confused with the suspect in our Case 27 (157W.

64. Compare Coke’s uneasy prescription argument, quoted supra text at note 2.