CHAPTER IX.

ENGLAND AND THE NORTHERN RACES.

In this long history of legalized cruelty and wrong the races of northern Europe are mostly exceptional. Yet it is somewhat remarkable that the first regular mediæval code in which torture is admitted as a means of investigation is the one of all others in which it would be least expected. The earliest extant law of Iceland, the Grágás, which dates from 1119, has one or two indications of its existence which are interesting as being purely autochthonic and in no sense derivable, as in the rest of Europe, from the Roman law. The character of the people, indeed, and of their institutions would seem to be peculiarly incompatible with the use of torture, for almost all cases were submitted to inquests or juries of the vicinage, and, when this was unsuitable, resort was had to the ordeal. The indigenous origin of the custom, however, is shown by the fact that while it was used in but few matters, the most prominent class subjected to it was that of pregnant women, who have elsewhere been spared by the common consent of even the most pitiless legislators. An unmarried woman with child, who refused to name her seducer, could be forced to do so by moderate torments which should not break or discolor the skin.[1805] The object of this was to enable the family to obtain the fine from the seducer, and to save themselves from the expense of supporting the child. When the mother confessed, however, additional evidence was required to convict the putative father. When the inhabitants of a district, also, refused to deliver up a man claimed as an outlaw by another district, they were bound to torture him to ascertain the truth of the charge[1806]—a provision doubtless explicable by the important part occupied by outlawry in all the schemes of Scandinavian legislation. These are the only instances in which it is permitted, while its occasional abuse is shown by a section providing punishment for its illegal employment.[1807] Slaves, moreover, under the Icelandic, as under other codes, had no protection at law, and were at the mercy of their masters.[1808] These few indications of the liability of freemen, however, disappear about the time when the rest of Europe was commencing to adopt the use of torture. In the _Jarnsida_, or code compiled for Iceland by Hako Hakonsen of Norway, in 1258, there is no allusion whatever to its use.

The Scandinavian nations, as a whole, did not admit torture into their systems of jurisprudence. The institution of the jury in various forms was common to all, and where proof upon open trial was deficient, they allowed, until a comparatively recent date, the accused to clear himself by sacramental purgation. Thus, in the Danish laws of Waldemar II., to which the date of 1240 is generally assigned, there is a species of permanent jury, _sandemend_, as well as a temporary one, _nefninge_, and torture seems to have formed no part of judicial proceedings.[1809] This code was in force until 1683, when that of Christiern V. was promulgated. It is probable that the employment of torture may have crept in from Germany, without being regularly sanctioned, for we find Christiern forbidding its use except in cases of high treason, where the magnitude of the offence seems to him to justify the infraction of the general rule. He, however, encouraged one of its greatest abuses in permitting it on criminals condemned to death.[1810]

Among the kindred Frisians the tendency was the same. Their code of 1323 is a faithful transcript of the primitive Barbarian jurisprudence. It contains no allusions to torture, and as all crimes, except theft, were still compounded for with _wer-gilds_, it may reasonably be assumed that the extortion of confession was not recognized as a judicial expedient.[1811]

So, in Sweden, the code of Raguald, compiled in 1441, and in force until 1614, during a period in which torture flourished in almost every European state, has no place for it. Trials are conducted before twelve _nempdarii_, or jurymen, and in doubtful cases the accused is directed to clear himself by oath or by conjurators. For atrocious crimes the punishments are severe, such as the wheel or the stake, but inflictions like these are reserved for the condemned.[1812] Into these distant regions the Roman jurisprudence penetrated slowly, and the jury trial was an elastic institution which adapted itself to all cases.

* * * * *

To the same causes may be attributed the absence of torture from the Common Law of England. In common with the other Barbarian races, the Anglo-Saxons solved all doubtful questions by the ordeal and wager of law, and in the collection known as the laws of Henry I. a principle is laid down which is incompatible with the whole theory of torture, whether used to extract confession or evidence. A confession obtained by fear or fraud is pronounced invalid, and no one who has confessed his own crime is to be believed with respect to that of another.[1813] Such a principle, combined with the gradual growth of the trial by jury, doubtless preserved the law from the contamination of inquisitorial procedure, though, as we have seen, torture was extensively employed for purposes of extortion by marauders and lawless nobles during periods of civil commotion. Glanville makes no allusion to it, and though Bracton shows a wide acquaintance with the revived Roman jurisprudence, and makes extensive use of it in all matters where it could be advantageously harmonized with existing institutions, he is careful to abstain from introducing torture into criminal procedure.[1814] A clause in Magna Charta, indeed, has been held by high authority to inhibit the employment of torture, but it has no direct allusion to the subject, which was not a living question at the time, and was probably not thought of by any of the parties to that transaction.[1815] In fact, the whole spirit of English law was irreconcilable with the fundamental principles of the inquisitorial process. When the accused was brought before court, he was, it is true, required to appear ungirdled, without boots, or cap, or cloak, to show his humility, but it is expressly directed that he shall not be chained, lest his fetters should embarrass his self-possession in his defence, and he was not to be forced in any way to state anything but of his own free will.[1816] Men who could frame legal maxims so honorable to their sense of justice and so far in advance of the received notions of their age could evidently have nothing in common with the principles which placed the main reliance of the law on confession to be wrung from the lips of an unfortunate wretch who was systematically deprived of all support and assistance. To do so, in fact, is classed with homicide, by a legal writer of the period;[1817] but that it was occasionally practised is shown by his giving a form for the appeal of homicide against judges guilty of it.[1818]

Under the common law, therefore, torture had properly no existence in England, and in spite of occasional efforts on the part of the Plantagenets[1819] the character of the national institutions kept at bay the absorbing and centralizing influences of the Roman law.[1820] Yet their wide acceptance in France, and their attractiveness to those who desired to wield absolute authority, gradually accustomed the crown and the crown lawyers to the idea that torture could be administered by order of the sovereign. Sir John Fortescue, who was Lord Chancellor under Henry VI., inveighs at great length against the French law for its cruel procedures, and with much satisfaction contrasts it with the English practice,[1821] and yet he does not deny that torture was occasionally used in England. Indeed, his fervent arguments against the system, addressed to Prince Edward, indicate an anxiety to combat and resist the spread of civil law doctrines on the subject, which doubtless were favored by the influence of Margaret of Anjou. An instance of its application in 1468 has, in fact, been recorded, which resulted in the execution of Sir Thomas Coke, Lord Mayor of London;[1822] and in 1485, Innocent VIII. remonstrated with Henry VII. respecting some proceedings against ecclesiastics who were scourged, tortured, and hanged.[1823]

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]