Part 7

Though the use of the Rack does not appear to have been known in this country until the 26th year of Henry the Sixth, and though it was never authorized by the law, yet to borrow the expression of Mr. Justice Blackstone, it was occasionally used as an “Engine of State,” to extort confession from State Prisoners confined in the Tower, from the time of its introduction, until finally laid aside in consequence of the decision of the judges in Felton’s case. One Hawkins was tortured[18] in the reign of Henry the Sixth; and the case of Anne Askew,[19] in that of Henry the Eighth,[20] cannot escape the recollection of every reader of English history. The Lord Chancellor Wriothesely (I blush for the honour and humanity of an English Judge while I write his name) went to the Tower to take her examination, and upon the Lieutenant’s refusing to draw the cords tighter, _drew them himself_ till every limb was dislocated, and her body nearly torn asunder. In Mary’s reign several persons were racked in order to extort confessions, which was upon account of Sir Thomas Wyat’s rebellion. And Barrington mentions that in Oldmixon’s History of England (p. 284,) one Simpson is said to have been tortured in 1558, and a confession extorted.

In the beginning of the reign of Elizabeth,[21] the Rack was used upon offenders against the State, and among others, upon Francis Throgmorton; in 1571, upon Charles Baillie an attendant upon the Bishop of Ross, Mary’s ambassador, and upon Banastre, one of the Duke of Norfolk’s servants; and Barker, another of his servants was brought to confess by extreme fear of it. In 1581, Campion, the Jesuit, was put upon the rack,[22] and in 1585, Thomas Morgan writes to the Queen of Scots, that he has heard D. Atslow was racked in the Tower, twice about the Earl of Arundel. This is the last instance of the actual application of torture to extort confession.

For the greater part of this reign the application of torture in the examination of State offenders seems to have been in common use, and its legality not disputed. Mr. Daines Barrington says,[23] that among the manuscript papers of Lord Ellesmere, is a copy of instructions to him, as Lord President of the Marches, to use the torture on the taking of some examinations at Ludlow; and Sir Edward Coke himself,[24] in the year 1600, (the 43d of Elizabeth’s reign) then being Attorney General, at the trials of the Earls of Essex and Southampton, boasted of the clemency of the Queen, because, though the rebellious attempts were so exceedingly heinous, yet out of her princely mercy “no person was racked, tortured, or pressed to speak any thing further than of their own accord.” And in the Countess of Shrewsbury’s case (10 James 1st) when Sir Edward was Chief Justice, in enumerating the privileges of the nobility, he mentions as one, that their bodies were not subject to torture _in causa criminis læsæ majestatis_. Barrington justly observes[25] there was a regular establishment for torture, for at his trial,[26] in the first year of James the first, Sir Walter Raleigh stated that Kemish had been threatened with the rack, and the keeper of the instrument sent for. Sir William Wade, who, with the Solicitor General had taken his examination, denied it, but admitted they had told him he deserved it, and Lord Howard declared, “Kemish was never on the rack, _the king gave charge that no rigour should be used_.”

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]

Footnote 17:

_Vide_ Serjeant Heywood’s Vindication of Mr. Fox’s History of James the Second, p. 397.

Footnote 18:

Fuller’s Worthies, p. 317.

Footnote 19:

There is a small book, printed in black letter, containing an account of the treatment and trial of Anne Askew, which contains many curious particulars.—She was the daughter of Sir William Askew, of Kelsay, in the county of Lincoln, where she was born about 1520. She had a learned education, and while young was married to a person of the name of Kyme, much against her inclination. On account of some harsh treatment from her husband, she went to the Court of Henry the Eighth to sue for a separation, where she was greatly taken notice of by those ladies who were attached to the Reformation; in consequence of which, she was arrested, and having confessed her religious principles, was committed to Newgate. She was first racked with savage cruelty in the Tower, and then burnt in Smithfield, in 1546, in company with her tutor, and two other persons of the same faith. From her letters and other pieces in Fox and Strype, it appears she was an accomplished, as well as a pious, woman.

Footnote 20:

Burnet’s Reformation, vol. 1. p. 325; vol. 2. p. 382.

Footnote 21:

Collier’s Eccl. Hist. vol. 2. p. 591.—Murden’s State Papers, p. 9, 101.

Footnote 22:

Collier’s Eccl. Hist. vol. 2. p. 139.—Murden’s State Papers, p. 452.

Footnote 23:

Observations on Ancient Statutes, p. 496, _note_.

Footnote 24:

State Trials, vol. 1. p. 199.

Footnote 25:

Observations on Statutes, p. 495.

Footnote 26:

State Trials, vol. 1. p. 221.

Footnote 27:

Observations on Statutes, p. 92.

Footnote 28:

State Trials, vol. 3. p. 99.

Footnote 29:

The Pandects (1. xlviii. tit. xviii.) contain the sentiments of the most celebrated civilians on the subject of torture. They strictly confine it to slaves.

Footnote 30:

The Citizens of Athens could not be put to the rack, unless it was for high treason. The torture was used within thirty days after condemnation. There was no preparatory torture. In regard to the Romans, the third and fourth law _de Majestate_, by Julius Cæsar, shews that birth, dignity, and the military profession exempted people from the rack, except in cases of high treason.—_Montesquieu’s Spirit of Laws_, vol. 1. p. 132.

Footnote 31:

Archadius Charisius is the oldest lawyer quoted in the Pandects to justify the universal practice of torture in all cases of treason; but this maxim of tyranny, which is admitted by Ammianus with the most respectful terror, is enforced by several laws of the successors of Constantine.—_Gibbon’s Rom. Hist._ vol. 3. p. 81.

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.”

His Majesty enquired if he was then writing any thing, he answered, he was not, for he had pretty well told the world what he knew, and must now read to acquire more knowledge. The king as it should seem with a view to urge him to rely on his own stores as an original writer, and to continue his labours, then said, “I do not think you borrow much from any body.” Johnson said he thought he had already done his part as a writer. “I should have thought so too,” said the king, “if you had not written so well.”—Johnson observed to me, says Boswell, that “No man could have paid a handsomer compliment; and it was fit for a king to pay. It was decisive.” When asked by another friend at Sir Joshua Reynolds’s, whether he made any reply to this high compliment, he answered, “No, Sir. When the king had said it, it was to be so. It was not for me to bandy civilities with my Sovereign.” Perhaps no man who had spent his whole life in courts could have shewn a more nice and dignified sense of true politeness than Johnson did in this instance.

“His Majesty having observed to him, that he supposed he must have read a great deal, Johnson answered, that he thought more than he read; that he had read a great deal in the early part of his life, but having fallen into ill health, he had not been able to read much compared with others; for instance he said he had not read much, compared with Dr. Warburton. Upon which the king said, that he heard Dr. Warburton was a man of such general knowledge, that you could scarce talk with him on any subject on which he was not qualified to speak, and that his learning resembled Garrick’s acting in its universality. The king observed that Pope made Warburton a bishop; ‘True, Sir,’ said Johnson, ‘but Warburton did more for Pope, he made him a Christian;’ alluding no doubt, to his ingenious comments on the ‘Essay on Man.’ His Majesty then talked of the controversy between Warburton and Lowth, which he seemed to have read, and asked Johnson what he thought of it. Johnson answered, ‘Warburton has most general, most scholastic learning; Lowth is the more correct scholar. I do not know which of them calls names best.’ The king was pleased to say he was of the same opinion; adding, ‘You do not think then, Dr. Johnson, that there was much argument in the case.’ Johnson said he did not think there was. ‘Why, truly,’ said the king, ‘when once it comes to calling names, argument is pretty well at an end.’“

His Majesty then asked him what he thought of Lord Lyttelton’s history, which was just then published. Johnson said, he thought his style pretty good, but that he had blamed Henry the Second rather too much. “Why, said the king, they seldom do these things by halves.” “No, Sir, answered Johnson, not to kings.” But fearing to be misunderstood, he proceeded to explain himself, and immediately subjoined, “That for those who spoke worse of kings than they deserved, he could find no excuse; but that he could more easily conceive how some might speak better of them than they deserved, without any ill intention; for, as kings had much in their power to give, those who were favoured by them would frequently, from gratitude, exaggerate their praises; and as this proceeded from a good motive, it was certainty excusable, as far as error could be excusable.”

The king then asked him what he thought of Dr. Hill. Johnson answered, that he was an ingenious man, but had no veracity; and immediately mentioned, as an instance of it, an assertion of that writer, that he had seen objects magnified to a much greater degree by using three or four microscopes at a time than by using one. “Now,” added Johnson, “every one acquainted with microscopes knows, that the more of them he looks through, the less the object will appear.” “Why,” replied the king, “this is not only telling an untruth, but telling it clumsily; for, if that be the case, every one who can look through a microscope will be able to detect him.”

I now, (said Johnson to his friends, when relating what had passed) began to consider that I was depreciating this man in the estimation of his Sovereign, and thought it was time for me to say something that might be more favourable. He added, therefore, that Dr. Hill was, notwithstanding, a very curious observer; and if he would have been contented to tell the world no more than he knew, he might have been a very considerable man, and needed not to have recourse to such mean expedients to raise his reputation.

The king then talked of Literary Journals, mentioned particularly the _Journal des Savans_, and asked Johnson if it was well done. Johnson said it was formerly very well done, and gave some account of the persons who began it, and carried it on for some years; enlarging at the same time, on the nature and use of such works. The king asked him if it was well done now. Johnson answered, he had no reason to think that it was. The king then asked him if there were any other Literary Journals published in this kingdom, except the Monthly and Critical Reviews; and on being answered there were no other, his Majesty asked which of them was the best; Johnson answered, that the Monthly Review was done with most care, the Critical upon the best principles; adding that the authors of the Monthly Review were enemies to the church. This the king said he was sorry to hear.

The conversation next turned on the Philosophical Transactions, when Johnson observed that they had now a better method of arranging their materials than formerly. “Aye, said the king, they are obliged to Dr. Johnson for that”; for his Majesty had heard and remembered the circumstance, which Johnson himself had forgot.

His Majesty expressed a desire to have the literary biography of this country ably executed, and proposed to Dr. Johnson to undertake it. Johnson signified his readiness to comply with his Majesty’s wishes.

During the whole of this interview, Johnson talked to his Majesty with profound respect, but still in his firm manly manner, with a sonorous voice, and never in that subdued tone which is commonly used at the levee and in the drawing-room. After the king withdrew, Johnson shewed himself highly pleased with his Majesty’s conversation, and gracious behaviour. He said to Mr. Barnard, “Sir, they may talk of the king as they will; but he is the finest gentleman I have ever seen.” And he afterwards observed to Mr. Langton, “Sir, his manners are those of as fine a gentleman as we may suppose Lewis the fourteenth, or Charles the second.”

DR. BEATTIE’S CONVERSATION WITH THE LATE KING AND QUEEN.

Dr. Beattie had been informed by Dr. Majendie, who lived at Kew, and was often at the palace, that the king having asked some questions of the doctor respecting him, and being told that he sometimes visited Dr. Majendie there, his Majesty had desired to be informed the next time Dr. Beattie was to be at Kew. What his Majesty’s intentions were, Dr. Majendie said he did not know; but supposed the king intended to admit him to a private audience. A day was therefore fixed, on which Dr. Beattie was to be at Dr. Majendie’s house early in the morning, of which the Doctor was to give notice to his Majesty. Of this interesting event, so honourable to Dr. Beattie, I shall transcribe in his own words, says Sir William Forbes, the account he has given in his diary:—