The statement that torture was not used in England is amazing, as it is beyond doubt that Smith himself racked prisoners in 1571.[50] It is, however, true that he expressed extreme reluctance to be put on such work. Hallam is undoubtedly correct in saying that “the rack seldom stood idle in the Tower for all the latter part of Elizabeth’s reign.”[51] Indeed, there is a tract, attributed to Lord Burghley, defending the manner in which torture had been applied to prisoners.[52] It was published about the same time as Sir Thomas Smith’s book. But torture, frequently as it was practised, never had the sanction of the law of England. Coke, in the Third Part of his “Institutes,” written in 1628 (first published in 1644), declares: “There is no one opinion in our books, or judiciall Record (that we have seen or remember) for the maintenance of tortures or torments.” “So as there is no law to warrant tortures in this land, nor can they be justified by any prescription, being so lately brought in.”
It would be idle to speculate as to the amount of alleviation the reflection that torture was illegal may have brought to Southwell, for instance, who was racked ten several times.
A kind of torture, not however applied for the purpose of extracting confessions, was recognised by the law. This was the Peine Forte et Dure, “one of the most singular circumstances,” writes Sir James Fitzjames Stephen, “in the whole of the criminal law.” It certainly is this: it is moreover, a practice as to which even writers on our criminal law have gone astray, not excepting Sir James himself.
It is a most remarkable example of judge-made law; the successive stages of its growth can in some measure be traced. Its very name betrays the change made in the punishment, as it is agreed that peine forte et dure was originally “prison forte et dure.” The statutory basis of the punishment is found in an Act, 3 Edward I. (1275), c. 12:—
“It is provided also, That notorious Felons, which openly be of evil name, and will not put themselves in Enquests of Felonies that Men shall charge them with before the Justices at the King’s suit, shall have strong and hard Imprisonment (prison forte et dure), as they which refuse to stand to the common Law of the Land: But this is not to be understood of such prisoners as be taken of light suspicion.”
Britton, supposed to have written about sixteen years later than the statute, in 1291 or 1292, thus states the punishment:—
“And if they will not put themselves upon their acquittal, let them be put to their penance until they pray to do it: and let their penance be this, that they be barefooted, ungirt and bareheaded, in the worst place in the prison, upon the bare ground continually, night and day; that they eat only bread made of barley or bran, and that they drink not the day they eat, nor eat the day they drink, nor drink anything but water, and that they be put in irons.”[53]
“Fleta,” written about the same time, contains similar details, expressly stating that the punishment is to continue till those who refuse the law “seek what they before contemned.”[54]
An actual case, not mentioned in the law books, is recorded in the Chronicle of Bartholomew Cotton. In 1293, for the murder of some Dutch sailors at Sniterleye, thirteen persons were hanged, and the bailiff of the hundred, because he would not put himself upon the inquest (se supponere inquisitioni), was sentenced to prison in this form, viz., that on the day when he ate he should not drink, and the bread which he had should be the worst bread, and the drink that he should have should be putrid water, and that he should remain naked except for a linen garment, and upon the naked ground, and that he should be loaded with iron from the hands to the elbows, and from the feet to the knees, until he should make his submission.[55]
That the “penance” was intended not to kill, but to induce the prisoner to plead, is shown by cases in the Year Book of Edward I. In 1302 one condemned to “the great penance” brought his charter of pardon into court, by means of his friends, ten days after the judgment.[56] In 1357 Cecilia, wife of John de Rygeway, indicted for the murder of her husband, stood mute, and was sentenced to imprisonment accordingly. In this case it was reported to the king “on trustworthy testimony” that Cecilia had lived without food or drink for forty days. This was regarded as miraculous, and Cecilia was in consequence pardoned. Here, in intention at least, the punishment went to the length of depriving of all food.[57]