Barrington mentions[[27]] that Sir John Hayward, the historian, was threatened with the rack, which Dr. Granger confirms; and the former also remarks that it is stated in King James’s works, that the rack was shewn to Guy Faukes when under examination.
Down to this period we do not find the legality of the practice questioned, though it has been said by high authority, as will be stated presently, that some doubts had been suggested to Queen Elizabeth. State Prisoners were confined usually in the Tower, and commissioners, attended by the law officers of the crown, were sent to examine them, who applied the rack at their own discretion, or according to the order of the privy council, or the king’s, without any objection being made to their authority.
In the third year of King Charles the first, Felton was threatened with the rack by the Earl of Dorset in the Tower, and Laud, then bishop of London, repeated the threats in council, but the king insisted upon the judges being consulted as to the legality of the application, and they being unanimously of opinion that it was illegal, it was never attempted afterwards. The answer which Felton made to Laud’s threats, is well worthy of attention; when Laud told him “if he would not confess he must go to the rack,” he 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 was to 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.”
In the year 1680 (32 Charles 2d) Elizabeth Collier was tried at the Old Bailey,[[28]] before Mr. Baron Weston, for the publication of a libel, in which many circumstances were related for the purpose of inducing a belief that Prance, when a prisoner in Newgate, had been tortured there, and he was produced to prove the falsehood of the publication. The learned judge in summing up the evidence to the jury said, “But you must first know the laws of the land do not admit a torture, and since Queen Elizabeth’s time there hath been nothing of that kind ever done. The truth is indeed, in the twentieth year of her reign, Campion was just stretched upon the rack, but yet not so but he could walk; but when she was told it was against the law of the land to have any of her subjects racked (though that was an extraordinary case, a world of seminaries being sent over to contrive her death, and she lived in continual danger) yet it was never done after to any one, neither in her reign, who reigned twenty-five years, nor in king James’s reign, who reigned twenty-two years after, nor in king Charles the first’s reign, who reigned twenty-four years after; and God in Heaven knows there hath been no such thing offered in this king’s reign; for I think we may say we have lived under as lawful and merciful a government as any people whatsoever, and have as little blood shed, and sanguinary executions as any nation under heaven.”
The learned judge may have been mistaken when stating Campion to be the last person racked, for in Murden’s state papers, one Atslow, as before observed, is mentioned to have been tortured four years afterwards. Mr. Baron Weston states that upon a suggestion made to Queen Elizabeth of the illegality of the practice, it was discontinued in her reign, and thus we may account for Campion being racked with so little severity, as to be able to walk afterwards, and to manage the conferences with protestant doctors during his confinement in prison.
In the Jurisprudence of the Romans the deceitful and dangerous experiment of the criminal quæstion, as it is emphatically styled, was admitted, rather than approved. The Roman government applied this sanguinary mode of examination only to servile bodies, whose sufferings were seldom weighed by those haughty Republicans in the scale of justice or humanity; but they would never consent to violate the sacred person of a citizen, till they possessed the clearest evidence of his guilt.[[29]] The annals of tyranny, from the reign of Tiberius to that of Domitian, circumstantially relate the executions of many innocent victims; but as long as the faintest remembrance was kept alive of the national freedom and honour, the last hours of a Roman were secure from the danger of ignominious torture. The conduct of the provincial magistrates was not, however, regulated by the practice of the city, or the strict maxims of the Civilians. They found the use of torture established not only among the slaves of oriental despotism, but among the Macedonians, who obeyed a limited monarch; among the Rhodians, who flourished by the liberty of commerce; and even among the sage Athenians, who had asserted and adorned the dignity of human nature.[[30]] The acquiescence of the people in the provinces encouraged their governors to acquire or perhaps to usurp, a discretionary power of employing the Rack, to extort from vagrants or plebeian criminals the confession of their guilt, till they insensibly proceeded to confound the distinctions of rank, and to disregard the privileges of Roman citizens. The apprehensions of the subjects urged them to solicit, and the interest of the Sovereign engaged him to grant, a variety of special exemptions, which tacitly allowed, and even authorized, the general use of torture. They protected all persons of illustrious or honourable rank, bishops and their presbyters, professors of the liberal arts, soldiers and their families, municipal officers, and their posterity to the third generation, and all children under the age of puberty. But a fatal maxim was introduced into the new jurisprudence of the Empire, that in the case of treason, which included every offence that the subtlety of lawyers could derive from an hostile intention towards the prince or republic, all privileges were suspended and all conditions were reduced to the same ignominious level. As the safety of the Emperor was avowedly preferred to every consideration of justice or humanity, the dignity of age, and the tenderness of youth were alike exposed to the most cruel tortures; and the terrors of a malicious information, which might select them as the accomplices, or even as the witnesses, perhaps, of an imaginary crime, perpetually hung over the heads of the principal citizens of the Roman world.[[31]]
Dr. JOHNSON’S CONVERSATION WITH THE LATE KING.
In February, 1767, there happened one of the most remarkable incidents of Johnson’s life, which gratified his monarchical enthusiasm, and which he loved to relate with all its circumstances, when requested by his friends. This was his being honoured by a private conversation with his late Majesty, in the Library at the Queen’s house. He had frequently visited those splendid rooms, and noble collection of books, which he used to say was more numerous and curious than he supposed any person could have made in the time which the king had employed. Mr. Barnard the Librarian, took care that he should have every accommodation that could contribute to his ease and convenience, while indulging his literary taste in that place, so that he had here a very agreeable resource at leisure hours.
His Majesty having been informed of his occasional visits, was pleased to signify a desire that he should be told when Dr. Johnson came next to the library. Accordingly the next time that Johnson did come, as soon as he was fairly engaged with a book, on which, while he sat by the fire he seemed quite intent, Mr. Barnard stole round to the apartment where the king was, and, in obedience to his Majesty’s commands, mentioned that Dr. Johnson was then in the library. His Majesty said he was at leisure and would go to him; upon which Mr. Barnard took one of the candles that stood on the king’s table, and lighted his Majesty through a suite of rooms till they came to a private door into the library, of which his Majesty had the key. Being entered, Mr. Barnard stepped forward hastily to Dr. Johnson, who was still in a profound study, and whispered him, “Sir, here is the king.” Johnson started up, and stood still. His Majesty approached him, and at once was courteously easy.
His Majesty began by observing, that he understood he came sometimes to the library; and then mentioned his having heard that the Doctor had been lately at Oxford, asked him if he was not fond of going thither. To which Johnson answered, that he was indeed fond of going to Oxford sometimes, but was likewise glad to come back again. The king then asked him what they were doing at Oxford. Johnson answered he could not much commend their diligence, but that in some respects they were mended, for they had put their press under better regulations, and were at that time printing Polybius. He was then asked whether there were better libraries at Oxford or Cambridge; he answered, he believed the Bodleian was larger than any they had at Cambridge; at the same time adding, “I hope whether we have more books or not than they have at Cambridge, we shall make as good use of them as they do.” Being asked whether All-Souls or Christ Church library was the largest, he answered, “All-Souls library is the largest we have except the Bodleian.” “Aye, (said the king) that is the public library.”