Under Henry VIII. and his children, the power of the crown was largely extended, and the doctrine became fashionable that, though under the law no one could be tortured for confession or evidence, yet outside and above the law the royal prerogative was supreme, and that a warrant from the King in Privy Council fully justified the use of the rack and the introduction of the secret inquisitorial process, with all its attendant cruelty and injustice. It is difficult to conceive the subserviency which could reconcile men, bred in the open and manly justice of the common law, to a system so subversive of all the principles in which they had been trained. Yet the loftiest names of the profession were concerned in transactions which they knew to be in contravention of the laws of the land.
Sir Thomas Smith, one of the ornaments of the Elizabethan bar, condemned the practice as not only illegal, but illogical. “Torment or question, which is used by order of the civile law and custome of other countries, ... is not used in England.... The nature of Englishmen is to neglect death, to abide no torment; and therefore hee will confesse rather to have done anything, yea, to have killed his owne father, than to suffer torment.” And yet, a few years later, we find the same Sir Thomas writing to Lord Burghley, in 1571, respecting two miserable wretches whom he was engaged in racking under a warrant from Queen Elizabeth.[1824]
In like manner, Sir Edward Coke, in his Institutes, declares—“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.” Yet, in 1603, there is a warrant addressed to Coke and Fleming, as Attorney and Solicitor General, directing them to apply torture to a servant of Lord Hundsdon, who had been guilty of some idle speeches respecting King James, and the resultant confession is in Coke’s handwriting, showing that he personally superintended the examination.[1825]
Coke’s great rival, Lord Bacon, was as subservient as his contemporaries. In 1619, while Chancellor, we find him writing to King James concerning a prisoner confined in the Tower on suspicion of treason—“If it may not be done otherwise, it is fit Peacock be put to torture. He deserveth it as well as Peacham did”—Peacham being an unfortunate parson in whose desk was found a MS. sermon, never preached, containing some unpalatable reflections on the royal prerogative, which the prerogative resented by putting him on the rack.[1826]
As in other countries, so in England, when torture was once introduced, it rapidly broke the bounds which the prudence of the Roman lawgivers had established for it. Treason was a most elastic crime, as was shown in 1553 by its serving as an excuse for the torture of one Stonyng, a prisoner in the Marshalsea, because he had transcribed for the amusement of his fellow-captives a satirical description of Philip II., whose marriage with Queen Mary was then under contemplation.[1827] But it was not only in cases of high treason that the royal prerogative was allowed to transgress the limits of the law. Matters of religion, indeed, in those times of perennial change, when dynasties depended on dogmas, might come under the comprehensive head of constructive treason, and be considered to justify the torture even of women, as in the instance of Ann Askew in 1546;[1828] and of monks guilty of no other crime than the endeavor to preserve their monasteries by pretended miracles.[1829] Under Elizabeth, engaged in a death-struggle with Rome, matters became even worse, and torture was habitually used on the unhappy Catholics who were thrown into the Tower. As the whole matter was without the color of law, all legal limitations seem to have been disregarded. The Jesuit Campion was subjected to the rack no less than three times with extreme severity, and in the intervals was made to dispute with Protestant divines.[1830] Having once thus secured its introduction in state trials for treason, the custom inevitably tended to spread to the sphere of the most ordinary criminal business. Suspicion of theft, murder, horse-stealing, embezzlement, and other similar offences was sufficient to consign the unfortunate accused to the tender mercies of the rack, the Scavenger’s Daughter,[1831] and the manacles, when the aggrieved person had influence enough to procure a royal warrant; nor were these proceedings confined to the secret dungeons of the Tower, for the records show that torture began to be habitually applied in the Bridewell. Jardine, however, states that this especially dangerous extension of the abuse appears to have ceased with the death of Elizabeth, and that no trace of the torture even of political prisoners can be found later than the year 1640.[1832] The royal prerogative had begun to be too severely questioned to render such manifestations of it prudent, and the Great Rebellion finally settled the constitutional rights of the subject on too secure a basis for even the time-serving statesmen of the Restoration to venture on a renewal of the former practice. Yet how nearly, at one time, it had come to be engrafted on the law of the land is evident from its being sufficiently recognized as a legal procedure for persons of noble blood to claim immunity from it, and for the judges to admit that claim as a special privilege. In the Countess of Shrewsbury’s case, the judges, among whom was Sir Edward Coke, declared that there was a “privilege which the law gives for the honor and reverence of the nobility, that their bodies are not subject to torture in causa criminis læsæ majestatis,” and no instance is on record to disprove the assertion.[1833]
In one class of offences, however, torture was frequently used to a later date, and without requiring the royal intervention. As on the Continent, sorcery and witchcraft were regarded as crimes of such peculiar atrocity, and the dread they excited was so universal and intense, that those accused of them were practically placed beyond the pale of the law, and no means were considered too severe to secure the conviction which in many cases could only be obtained by confession. We have seen that among the refinements of Italian torture, the deprivation of sleep for forty hours was considered by the most experienced authorities on the subject to be second to none in severity and effectiveness. It neither lacerated the flesh, dislocated the joints, nor broke the bones, and yet few things could be conceived as more likely to cloud the intellect, break down the will, and reduce the prisoner into a frame of mind in which he would be ready to admit anything that the questions of his examiners might suggest to him. In English witch-trials, this method of torture was not infrequently resorted to, without the limitation of time to which it was restricted by the more experienced jurists of Italy.[1834]
Another form of torture used in Great Britain, which doubtless proved exceedingly efficacious, was the “pricking” adopted to discover the insensible spot, which, according to popular belief, was one of the invariable signs of a witch. There were even professional “prickers” who were called in as experts in the witch-trials, and who thrust long pins into the body of the accused until some result, either negative or positive, was obtained.[1835] Thus at the prosecution of Janet Barker, in Edinburgh, in 1643, it is recorded that “she had the usual mark on the left shoulder, which enabled one James Scober, a skilful pricker of witches, to find her out by putting a large pin into it, which she never felt.”[1836] One witch pricker, named Kincaid, used to strip his victims, bind them hand and foot, and then thrust his pins into every part of their bodies, until, exhausted and rendered speechless by the torture, they failed to scream, when he would triumphantly proclaim that he had found the witch-mark. Another pricker confessed on the gallows that he had illegally caused the death of a hundred and twenty women whom he had thus pricked for witchcraft.[1837]
In Scotland, torture, as a regular form of judicial investigation, was of late introduction. In the various codes collected by Skene, extending from an early period to the commencement of the fifteenth century, there is no allusion whatever to it. In the last of these codes, adopted under Robert III. by the Parliament of Scotland in 1400, the provisions respecting the wager of battle show that torture would have been superfluous as a means of supplementing deficient evidence.[1838] The influence of the Roman law, however, though late in appearing, was eventually much more deeply felt in Scotland than in the sister kingdom, and consequently torture at length came to be regarded as an ordinary resource in doubtful cases. In the witch persecutions, especially, which in Scotland rivalled the worst excesses of the Inquisition of Italy and Spain, it was carried to a pitch of frightful cruelty which far transcended the limits assigned to it elsewhere. Thus the vigils, which we have seen consisted simply in keeping the accused awake for forty hours by the simplest modes, in Scotland were fearfully aggravated by a witch-bridle, a band of iron fastened around the face, with four diverging points thrust into the mouth. With this the accused was secured immovably to a wall, and cases are on record in which this insupportable torment was prolonged for five and even for nine days. In other cases an enormous weight of iron hoops and chains, amounting to twenty-five or thirty stone, would be accumulated on the body of the patient.[1839] Indeed, it is difficult to believe that the accounts which have been preserved to us of these terrible scenes are not exaggerated. No cruelty is too great for the conscientious persecutor who believes that he is avenging his God, but the limitless capacity of human nature for inflicting is not complemented by a limitless capacity of endurance on the part of the victim; and well authenticated as the accounts of the Scottish witch-trials may be, they seem to transcend the possibility of human strength.[1840] In another respect these witch-trials were marked with a peculiar atrocity. Elsewhere, as we have seen, confession was requisite for condemnation, thus affording some color of excuse for torture. In Scotland, however, the testimony of the pricker was sufficient, and torture thus became a wanton and cruel surplusage, rendered the less defensible in that the poor wretch who yielded to the torment and confessed was rewarded by being mercifully strangled before being burnt, while those who held out under torture were condemned and burnt alive.[1841]
Torture thus maintained its place in the laws of Scotland as long as the kingdom preserved the right of self-legislation, though an attempt seems to have been made to repress it during the temporary union with England under the Commonwealth. In 1652, when the English Commissioners for the administration of justice sat in Edinburgh, among other criminals brought before them were two witches who had confessed their guilt before the Kirk. They were the remains of a party of six, four of whom had died under the tortures employed to procure confession—such as hanging by the thumbs tied behind the back, scourging, burning the feet and head and putting lighted candles into their mouths, clothing them in hair-cloth soaked in vinegar “to fetch off the skin,” &c. Another woman was stripped naked, laid on a cold stone with a hair-cloth over her, and thus kept for twenty-eight days and nights, being fed on bread and water. The diarist who records this adds that “The judges are resolved to inquire into the business, and have appointed the sheriff, ministers, and tormentors to be found out, and to have an account of the ground of this cruelty.”[1842] What result their humane efforts obtained in this particular instance I have not been able to ascertain, but the legal administration of torture was not abolished until after the Union, when, in 1709, the United Parliament made haste, at its second session, to pass an act for “improving the Union,” by which it was done away with.[1843] Yet the spirit which had led to its abuse could not be repressed by Act of Parliament, and a case is on record, occurring in 1722, when a poor old woman in her dotage, condemned to be burnt as a witch, actually warmed her withered hands at the stake lighted for her destruction, and mumbled out her gladness at enjoying the unaccustomed warmth.[1844]