[9] I have remarked in former passages that the rack was much employed, especially against Roman catholics, under Elizabeth. Those accused of the gunpowder conspiracy were also severely tortured; and others in the reign of James. Coke, in the Countess of Shrewsbury's case, 1612 (State Trials, ii. 773), mentions it as a privilege of the nobility, that "their bodies are not subject to torture in causâ criminis læsæ majestatis." Yet, in his third Institute, p. 35, he says, the rack in the Tower was brought in by the Duke of Exeter, under Henry VI., and is, therefore, familiarly called the Duke of Exeter's daughter; and after quoting Fortescue to prove the practice illegal, concludes—"There is no law to warrant tortures in this land, nor can they be justified by any prescription, being so lately brought in." Bacon observes, in a tract written in 1603: "In the highest cases of treason, torture is used for discovery, and not for evidence."—i. 393. See also Miss Aikin's Memoirs of James I. ii. 158.
[10] State Trials, iii. 359. This was a very important determination, and put an end to such tyrannical persecution of Roman catholics for bare expressions of opinion as had been used under Elizabeth and James.
[11] Rushworth (Abridged), ii. 253; Strafford's Letters, ii. 74.
[12] Whitelock, 16; Kennet, 63. We find in Rymer, xix. 279, a commission, dated May 6, 1631, enabling the privy-council at all times to come, "to hear and examine all differences which shall arise betwixt any of our courts of justice, especially between the civil and ecclesiastical jurisdictions," etc. This was in all probability contrived by Laud, or some of those who did not favour the common law. But I do not find that anything was done under this commission, which, I need hardly say, was as illegal as most of the king's other proceedings.
[13] 2 Inst. 593. The regulations contained in the statute de militibus, 1 Ed. II., though apparently a temporary law, seem to have been considered by Coke as permanently binding. Yet in this statute the estate requiring knighthood, or a composition for it, is fixed at £20 per annum.
[14] According to a speech of Mr. Hyde in the long parliament, not only military tenants, but all others, and even lessees and merchants, were summoned before the council on this account. Parl. Hist. ii. 948. This was evidently illegal; especially if the Statutum de militibus was in force, which by express words exempts them. See Mr. Brodie's Hist. of British Empire, ii. 282. There is still some difficulty about this, which I cannot clear up, nor comprehend why the title, if it could be had for asking, was so continually declined; unless it were, as Mr. B. hints, that the fees of knighthood greatly exceeded the composition. Perhaps none who could not prove their gentility were admitted to the honour, though the fine was extorted from them. It is said that the king got £100,000 by this resource. Macauley, ii. 107.
[15] Rushworth Abr. ii. 102.
[16] Strafford's Letters, i. 335.
[17] Id. pp. 463, 467.
[18] Id. ii. 117. It is well known that Charles made Richmond Park by means of depriving many proprietors not only of common rights, but of their freehold lands. Clarendon, i. 176. It is not clear that they were ever compensated; but I think this probable, as the matter excited no great clamour in the long parliament. And there is in Rymer, xx. 585, a commission to Cottington and others, directing them to compound with the owners of lands within the intended enclosures. Dec. 12, 1634.