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ART. III-A Reading on the Use of Torture in the Criminal Law of England, previously to the Commonwealth: Delivered at New Inn Hall in Michaelmas Term, 1836. By DAVID JARDINE, Esq. Barrister at Law. 8vo. London : 1837.
N the reign of Henry VI., Chief Justice Fortescue, in his well-known Treatise De Laudibus Legum Anglica, con'demns,' as Mr Jardine says, the use of torture in the strongest language, as inhuman and unjust.' In 1565, Sir Thomas Smith (in his Commonwealth of England) not only asserts the unlawfulness of torture, but denies altogether its employment in this country. Lord Coke declares it to be against Magna Charta, cap. 29,' and gives the full sanction of his great authority to the assertion, that there is no one opinion in our books or judi'cial records (that we have seen and remember) for the mainte'nance of tortures or torment.' And, finally, the Judges are said to have answered the official question propounded by Charles I. in the case of Felton, in 1639, to the effect that he ought not by law 'to be tortured by the rack, for no such punishment is known 6 or allowed by our law.'
And yet, notwithstanding these reiterated declarations of the law of England by its gravest expositors, it is perfectly well known to the student of history that torture was lavishly employed, under the reigns of the Tudors, in the investigation of state offences. This is matter of notoriety; as is likewise the general mode of accounting for the inconsistency, namely, that the Question was illegally inflicted by a frequent but arbitrary stretch of the royal prerogative. But the essay of Mr Jardine has placed this subject in a light entirely new to us; nor can we find that his view of it had been previously taken by any of our chief authorities on constitutional history. His researches appear to establish this result-that the employment of the rack was not a mere special exertion of prerogative occasionally practised under the plea of state expediency, but was an ordinary part of the judicial process of the King's Council in criminal matters; that there was, in fact, during the whole of the Tudor reigns, a court permanently sitting, and exercising a wide jurisdiction over offences municipal as well as political, deriving its power solely from prerogative, and employing torture, according to the principles of the civil law, to extort confession whenever it seemed expedient. To use the language of Mr Jardine himself, it is a historical fact that, anterior to the Commonwealth, torture was always ' used as a matter of course in all grave accusations, at the mere
'discretion of the King and the Privy Council, and uncontrolled by any law except the prerogative of the Sovereign.' We shall see presently that the authorities adduced by him very nearly, if not quite, support, in its full extent, this sweeping assertion.
These authorities are, first, the Council books. 'Registers of the proceedings of the Privy Council during the reigns of Edward VI., Mary, Elizabeth, James I., and Charles I., are 'still in existence, with the exception of occasional intervals of ' a few years; and in these books there are numerous entries of ' warrants from the Council authorizing the application of torture, for the purpose of compelling the disclosure of political conspiracies and crimes of various descriptions.' The chain of evidence, during the years for which the Council books afford no assistance, is in part continued by means of originals or copies of torture-warrants, and of returns to such warrants, which Mr Jardine has discovered in the State Paper office. And in one or two instances, similar orders have been discovered under the SignManual. But Mr Jardine is, in all probability, quite authorized in supposing that the cases of torture which have come to our knowledge, numerous as they appear, are samples only of the common course of proceeding. The practice is constantly referred to in these precedents as usual' and ordinary. Many a warrant may have been issued from the Council-board, of which, from prudential reasons, no minute would be made in the books; many more, in all probability, with the more secure and private direction of the Sign- Manual;- a mode of communicating authority which was probably quite as much used as that of board'warrants, although the particular instances are not quite so 'carefully recorded.' But the proofs which remain are quite sufficient to support the general proposition of the habitual employment of torture, by the Council, in the investigation of all manner of offences, which Mr Jardine makes the thesis of his
The form of these warrants is pretty uniform; and so, apparently, were the proceedings under them. They are usually addressed to the constable or lieutenant of the Tower, and to one or more of the Privy Council; sometimes, in addition, to one of the Masters of Requests (probably, as Mr Jardine suggests, on account of their character of civilians; the rules of the civil law being professedly followed in the application of torture); and, frequently, to the Attorney or Solicitor-General. Servants of the crown were, in almost all cases, the instruments of this prerogative. In two instances only, Mr Jardine has discovered the names of common law Judges among the parties to whom such warrants were directed; and on these we shall have to remark
presently, as throwing some light upon the constitutional question connected with this subject. The warrants usually recite the vehement suspicion' under which the prisoners lay (corresponding with the indicia torture of the civil law); they then prescribe the sight of the rack, in the first instance, as an useful expedient; and, if that will not answer, the application of it is recommended in various soft and conciliatory phrases.
It has been suggested' (says Mr Jardine) by several writers, and among others, by the great authority of Mr Hargrave, that the instances of torture usually adduced are merely so many exceptions and irregularities, and that the general practice has been consistent with what they contend to have been the general rule, namely, the absolute illegality of torture at all periods of the history of English law. It appears to me, I confess, that the facts I have enumerated clearly establish an uniform practice the other way. They seem to me to show, not the casual, capricious, or unjust acts of particular kings or counsellors, but a practice handed down and justified by a constant course of precedents as an unquestionable prerogative of the crown, though directly opposed to the fundamental principles of reason and law, and condemned and denounced by the opinions of the wisest statesmen and lawyers at the very time they were compelled to act upon it. No doubt the assertion of the illegality of torture is, in one sense, strictly true. It was not lawful by the common law, and it was contrary to Magna Charta, and many statutes; and, therefore, the judges could not inflict it as a punishment in the ordinary course of administering justice. But it was lawful as an act of prerogative; as an act of that power to which, according to the doctrines of those days, the laws belonged as a kind of property; a power which was superior to the laws, and was able to suspend these laws, and which was the only and uncontrolled tribunal to judge of the necessity of such suspension,'
Now it will, we think, be clear to every one who studies the series of precedents adduced in this valuable essay, with the assistance of such knowledge as we derive from other authorities, that the question of the lawfulness of torture in England was a mere appendage of a more general question-that of the power of the King in Council, not merely to commit (which might be justified on strictly legal grounds), but to detain persons suspected of criminal acts. If the Council could lawfully hold a prisoner in confinement, it could as lawfully subject him to the question. Being a tribunal wholly unrecognised by common law or statute, its process could not be controlled by those rules protecting the liberty of the subject which usage or statute impose. It might follow the maxims of the civil or any other jurisprudence. in fact, Mr Jardine's instances distinctly prove that it did torture quite as much ad libitum as it imprisoned. But when we recollect the plain words of Magna Charta itself when we recollect the tri
umphant argument, of which those words formed the text, urged by Selden and his fellows in the discussions on the Petition of Right' it is surely too much to say, that the prerogative of arbitrary imprisonment was unquestionable. It was, in fact, directly and successfully questioned, as soon as ever men ventured to confront it. If we admit that prerogative was a power superior to the laws and able to suspend them, on the ground that such suspension was constantly acquiesced in, we admit the mere evidence of usage to control the express words of statutes, and the express dicta of our chief law authorities. And the resistance of -the Commons in 1628 to arbitrary imprisonment the resistance of Hampden to arbitrary taxation, become, on this supposition, not struggles of right against might, but the conflicts of an independent potentate, Law, with another independent potentate, Prerogative; conflicts in which, fortunately for us, victory remained with the popular cause, but where it is impossible to say that either of the combatants had better positive ground of right than the other. This is the very doctrine for which Hume is so much condemned by modern Whig authorities. Probably the assertors of royal power under Elizabeth and James-we mean those who thought and reasoned on the question, not the mere sycophants of supremacy, whether churchmen or civilians-would themselves hardly have laid down Mr Jardine's proposition as broadly as he has done, in stating that the laws belonged to prerogative as a kind of property, and that every act of prerogative was ex vi termini lawful. They, in fact, contended both for the ordinary prerogatives of the crown, as limited by law, such as survived the Revolution, with slight changes only, and exist at the present day; and, at the same time, for another species of prerogative, extraordinary, exceptional, and founded on the simple maxim of salus populi suprema lex. They did not contradict the words of Magna Charta or the rules of common law; but they argued, that there must exist somewhere in the Commonwealth a majesty superior to the voice of the legislature or the tribunals, and able to save the state, in despite of the laws, by suspending their execution where absolute necessity required it. They, of course, admitted, that any act of prerogative which was neither within strict legal bounds, nor demanded by such necessity, was unjustifiable. But they rendered this admission wholly nugatory in practice, by asserting, in Mr Jardine's words, that the royal authority itself was the only and uncontrolled tribunal to judge of the necessity of such suspension.' Thus they fell into the common sophism of tyranny-first claiming a limited power only, and then maintaining that the only judge competent to decide whether the power exercised was within these limits or not, was
the holder of the power itself;-a sophism which we have seen reasserted in our own times by a committee of the House of Commons, and fortified with a logic of which Heath, Noy, or Bacon himself, might have been reasonably proud.
It is plain enough, therefore, what Coke meant by merely denying the legality of torture by the law of England, and leaving the subject there. He did not care to enter upon the great and terrible question of the lawfulness of the dispensing power. That was a topic to be debated on the floor of the Houses of Parliament, not to be made the theme of a lawyer's prelections. But he well knew that whenever the quarrel between law and prerogative should come to an issue, then his earnest and serious words would be of no small weight in the controversy. Then the question would be asked aloud, which he only put by implication whether a practice so wholly contrary to the ancient law of the realm could be justified on the ground of state necessity alone? His very silence as to the claims of prerogative was pregnant and ominous. But the same justification cannot be urged for the strange suppressions of truth to be found in the writings of other authors, especially Sir Thomas Smith; who denied not only the lawfulness but the existence of the practice, which must have been as notorious as that of the Privy Council, or of the Tower of London. Torment or question,' says that model of diplomatists, in a passage which we have already mentioned, which is used by 'the order of the civile law and custome of other countries, to put a 'malefactor to excessive paine to make him confesse of himselfe, 'or of his fellows and complices, is not used in England. It is 'taken for servile. For how can he serve the commonwealth ' after as a freeman, who hath his bodie so haled and tormented? And if he bee not found guilty, what amend can be made ' him? And if he must dye, what crueltie is it so to torment him 'before? The nature of Englishmen is to neglect death, to abide no torment: and therefore he will confesse rather to have done 'any thing-yea, to have killed his own father-than to suffer 'torment. For death our nation doth not so much esteeme as a meere torment: in no place shall you see malefactors goe more 'constantly, more assuredly, and with less lamentation to their death than in England. The nature of our nation is free, stout, haulty, prodigall of life and blood; but contumely, beating, servitude, and servile torment and punishment it will not abide.'
We shall presently see, that at the very time when Sir Thomas Smith was penning this bold declamation, the Privy Council was in the constant habit of issuing torture-warrants-not merely in exceptional cases, or for the disclosure of state secrets-but as an ordinary part of its criminal practice! And what can be said.