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"25th October, 1591.
"A Letter to Dr. Fletcher, Richard Topcliff, Richard Braithwaite, and Richard Yonge, Esquires. Whereas one Eustace White, a Seminary Priest, and one Bryan Lacey, &c. You are required to examine them straitly, and for the better bolting forth of the truth cause them to be put to the manacles and such other tortures as are used in Bridewell," &c.
"A Letter to Mr. Attorney, Mr. Solicitor. A warrant to put Thomas Clinton to the manacles, and such torture as is used in Bridewell.”
"8th July, 1592-3.
"A letter to Mr. Richard Yonge and Mr. Ellis, to put to the torture Winstone, and Edward Bagshaw, and Henry Ashe.”
"4th June, 1592.
"A Letter to Sir George Cary, Knight, and Mr. Richard Yonge, to put Owen Edmund to the torture," &c.
"16th April, 1593.
"A Letter to the Lord Maior of London. Whereas there was a vyle placarde set up upon some post in London, we have to pray your Lordship to cause the person to be punished by torture used in the like cases."
"A letter to Sir Roland Martin, Anthoney Ashlie, Mr. Alderman &c., warrant to apprehend [without naming them] persons suspected of having written libels, and to put them to torture in Bridewell, to be at such times and as often as all you shall think fit," &c.
"12th Nov. 1595.
"A Letter to Her Majestie's Sollicitor General and William Wade, Esquier. Whereas one Gabriel Colford brought certain seditious books into the Realme, and a Tailor called Thomas Foulkes, in whose house this Colford did lodge, these shall by virtue hereof require you to put them to the torture of the manacles."
"1st Dec., 1557.
"A Letter to Sir Richard Martin, Mr. Recorder of London, Mr. Topcliff, Mr. F., Mr. Ash, Mr. V., and Mr. Shevington, or any two of them, to put Thomas Travers to the torture of the manacles," &c.
"25th Jan., 1596-7.
"A letter to Sir Thomas Wilks and Mr. Wade to examine John Hardre, a Frenchman, of the age of about 60 years, and to trie him by the ordinary torture in Bridewell," &c.
"Lent Day of Feb., 1595.
"A letter to Sir Robert Martin from Sir Robert Cecil, Knight, to put Humphrey Hodges to the manacles," &c.
"21st Nov., 1596.
"A Letter to the Recorder of London, Mr. Topcliffe, and Mr. Shevington to put to the manacles the Ring Leaders of 80 persons calling themselves Egyptians," &c.
"19th Dec., 1596.
"A Letter to Mr. Attorney and Mr. Solicitor General, Mr. Francis Bacon, and Mr. Recorder of London, or to anie two of them: you shall understand that certaine persons intended to make a risinge in the county of Oxford. You shall cause them to be put to the manacles and torture. "Whereof we praie you to advertize us from tyme to tyme," &c.
"2nd Feb., 1596-7.
"A Letter to Mr. Attorney General, Mr. Sollicitor, Mr. Francis Bacon, and Mr. William Waad. Whereas one William Tompson is charged to have a purpose to burne her Majestie's shipps, these shall require you to examine the sayde Thomson, and cause him to be put, to the manacles or the torture of the rack, as in like cases hath been used."
Such are some of the warrants in the time of Elizabeth, who died March, 1603. Mr. Jardine says, in his work on torture,
"The Council books for the first twelve years of James the 1st are unfortunately missing, and for that period, therefore, I must draw the evidence of the continuation of the practice from other sources. Two original warrants from the privy council for applying the torture to one Philip May, dated the 19th and 20th April, 1603, before the King's arrival in London, or his accession to the throne, are to be found in the State Paper Office; they are as follows:
"19th April, 1603.
"Original in the State Paper Office. "A warrant to put to the torture of the rack one Philip May. From Whitehall this 19th of Aprill, 1603.
"Your Lordship's verie loving friends,
W. KNOLLYS. ED. WOTTON.
J. STANHOPE. E. BRUCE.
"Addressed on the outside,
"To our loving friends Sir John Peyton, Knt., Lieutenant of the Tower of London; Edward Coke, Esq., His Majesty's Attorney Generall; Thomas Fleming, Esq., His Majestie's Sollicitor Generall; and William Waad, Esq., one of the Clerks of his Majesty's Privy Council."
"Warrant to put Philip May the manacles, or such other torture as is made in the Tower, &c.
"From the King's Majestie's Pallace of Whitehall, the 20th of Aprill, 1603.
"Your verie loving Friends,
"THO. EGERTON. C. S. T. BUCKHURST.
"Lord Chiefe Justice, Lieutenante of the Tower, Mr. Attorney, Mr. Sollicitor, or any two or more of them.
"On the outside this warrant is addressed,
"To our very good Lord Chiefe Justice of England; Sir John Peyton, Knt., Lieutenant of the Tower; Edward Coke, Esq., the King's Majesty's Attorney General; and Thomas Fleming, His Majesty's Sollicitor, or any two or more of them."
"19th Feb., 1619-20.
"Sir E. Coke present. A letter to the Lieutenant of the Tower. Whereas Samuel Peacock is suspected of High Treason, &c. And whereas we have thought meet to nominate and appoint Sir Henry Montague, Knight, Lord Chief Justice of the King's Bench, Sir Thomas Coventry, Knight, His Majesty's Solicitor General, and yourself to examine the said Peacock for the better discovery of the truth of this treason. This shall authorize you, or any two of you, whereof yourself to be one, to examine the said Peacock from time to time, and put him, as there shall be cause for the better manifestation of the truth, to the torture, either of the manacles or the rack. For which this shall be your warrant."
"9th June, 1621.
"A Letter to Mr. Sergeant Crew and Mr. Attorney General to examine James Crasfield, and not only to offer him the manacles and rack, but to use the same as in their discretion they shall feel requisite for discovery of the truth."
Jardine says, Sir Edward Coke personally assisted this examination by torture.
In the Gunpowder Plot case there is (says Jardine) the wellknown warrant in the King's hand-writing, authorizing the Commissioners to examine Fawks on the rack.
It appears that at this time it was the common course for commissioners, upon examination into offences of state, to make use of torture. Catholic writers have constantly asserted that many of the witnesses by whom Father Garnet was charged with the guilt of the Gunpowder Plot were examined under torture. In particular they assert that H. Owen, who died in the Tower within a few days after his apprehension, expired in the endurance of some dreadful species of torture. The whole account of his torture is in Jardine. There are several notorious instances of torture in the subsequent parts of the reign of James.
As to torture in the times of Charles, Mr. Jardine adds,—
"It scarcely admits of doubt that the practice of torture was continued during the whole reign of James I. I shall now proceed to show that Charles I. was not more abstemious than his predecessors in the exercise of this obnoxious prerogative.
"30th April, 1626.
"A warrant to SIR ALLEN APSLEY, Knt. Lieut. of the Tower,
Mr. SERJ. ASHley,
Mr. TURNBULL, and
Or any two of them to examine William Monk upon such interrogatories as should be directed by the Lord Chief Justice of the King's Bench, and to use the manacles to the said Monk if in their discretion they shall think it fit, and to certify the Board what they find."
I pass on to the last warrant by which this horrid practice was sanctioned in England.
"Truste and well beloved, we greet you well. Our will and pleasure is, that to-morrow morning, by seven o'clock, you cause John Archer to be carried to the rack, and that there yourself together with Sir Ralph
Whitfield, and Sir Robert Heath, knight, our serjeant-at-law, shall examine him, and if upon sight of the rack he shall not make a clear answer, then our further pleasure is, that you cause him to be racked as in your and their discretion shall be thought fit. And when he shall have made a full answer, then the same is to be brought to us, and you are still to deteyne him close prisoner till you shall receive further orders; and this shall be as well to you, as to our said serjeants, sufficient warrant and discharge in this behalf.
"Given under our Signett at our Court at Whitehall, "2 May, 1641. "To our trusty and well beloved son, WALTER BALFOUR, knight, "Lieutenant of the Tower of London."
Such is the evidence from facts, let us now proceed to evidence from OPINIONS. And first, Mr. Hume says,—
"The Star Chamber, and High Commission, and Court-martial, though arbitrary jurisdictions, had still some pretence of a trial, at least of a sentence; but there was a grievous punishment very generally inflicted in that age without any other authority than the warrant of a Secretary of State or of the Privy Council, and that was imprisonment in any gaol and during any time that the ministers should think proper. In suspicious times all the gaols were full of prisoners of state; and these unhappy victims of public jealousy were sometimes thrown into dungeons, and loaded with irons, and treated in the most cruel manner, without their being able to obtain any remedy from law.
"This practice was an indirect way of employing torture: but the rack itself though not admitted in the ordinary execution of justice, was frequently used, upon any suspicion, by authority of a warrant from a Secretary or the Privy Council. Even the Council in the marches of Wales was empowered by their very Commission, to make use of torture whenever they thought proper."
"It is an historical fact that anterior to the commonwealth torture was always used as a matter of course. No doubt the assertion of the illegality of torture is in one sense strictly true. It was not lawful by the common law; 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 the laws, when such writers as Fortescue, Coke, and Smith denounce the use of torture as illegal, they must be considered as speaking of it with reference to the common law of England and its employment in the ordinary administration of justice. But they would probably have admitted, that the use of the rack was lawful and justifiable by the English Constitution, if warranted by the special command of the King. This distinction, which though obscure to us in