James I

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Torture in sixteenth century England

In August, 1588, after the defeat of the Spanish armada, Francis Bacon was appointed to a commission tasked with interviewing recusant Catholics held in London prisons. Eight other men served on the commission, including Sir Owen Hopton, Lieutenant of the Tower,  Sir William Waad, clerk to the Privy Council, Sir Richard Young, the Middlesex justice, and Sir Richard Topcliffe. Bacon was much the youngest member of the commission. It must have been weary work and was certainly unpaid, but it was an honor nonetheless. Bacon would have been chosen in his capacity as an expert in the common law, whose character was well known to the authorities. The appointment was an indication of trust as well as respect for his learning and judgement.

Within a few weeks, they compiled a list of 40 prisoners, mostly from the south-eastern counties. They were especially interested in Jesuits and seminarians — Englishmen who had gone abroad to train at a seminary, like the College of Rheims. The interviews were intended to produce the names of persons who might be engaged in crimes against the state. The English had chased the Spanish fleet from their coasts, but didn’t know where the fleet was, exactly, or what condition it was in. They feared it would come back or that a fresh assault would be launched from the north or from across the narrow sea or that a more insidious strategy of infiltration and assassination would now be more aggressively pursued.

The recusancy commission was granted some warrants for treason; at least, William Waad and Richard Young were named in torture warrants for 1588. It’s very unlikely that Bacon or any of the other gentlemen actually took part in torture sessions. That was a form of manual labor, after all. But recusants were very likely tortured in pursuit of the commission’s aims. I wanted to understand how that would have worked, in case it came up in The Widows Guild (which it did.) Luckily for me, there is a most excellent book on the subject: John Langbein’s  Torture and the Law of Proof, from the University of Chicago Press, 1977.

I can’t do better than the review quoted at Amazon: “Like all good monographs, Torture and the Law of Proof not only does what it sets out to do well but points to new directions. It is a concise scholarly work that compares two legal systems with graceful ease and has provocative implications extending far beyond the sleazy world of rack, strappado, and thumb screw.” (Charles Carlton American Historical Review

Wait, I can do better! This scholarly monograph is written in a clear, accessible style; no trendy jargon, no weighty syntactic architectures. Langbein’s goal is to explain, not to polemicize, and he succeeds. I read this in a couple of days. It isn’t lurid — that’s not why it’s a page-turner — it’s just fascinating to understand how torture could ever play a role in legal proceedings.

Judicial torture in Europe

Thumbscrews. Wikimedia Commons.

Judicial torture was sanctioned and regulated by Roman (canon) law on the Continent during this period. Physical coercion by officers of the state was part of the evidence gathering system for judicial proceedings in cases of serious crime, where blood sanctions could be imposed. (An ear cut off, a life taken.) The court could convict an accused on the testimony of two eyewitnesses. If they only had one, they could convict only on the basis of a confession. Circumstantial evidence – indicia – could be helpful, but were not compelling. Such evidence did not constitute proof. Humans had to speak.

Torture was thus used to obtain a confession in cases of half proof: one witness or circumstantial evidence of sufficient gravity. The use of torture was constrained by a system of rules designed to enhance the reliability of that confession. The accused had to offer specific details that could be verified, for example. They were well aware that a person being tortured will say anything to appease the torturer and made an effort to compensate. Grisly, yet practical.

The law of proofs was the successor to “the non-rational proofs of Germanic antiquity,” which were abolished in 1215 by the Fourth Lateran Council. This signaled a “profound change in thinking about the nature of government and law.” God was no longer the only arbiter; more crucially, God was no longer the fact-finder. Human judges did that work now, so rules and systems had to be devised to elevate those judges above the status of mere mortals, like the accused. The Law ruled through the judges.

Here’s an odd fact not directly related to judicial torture: Galley sentences were still carried out in this century and the next one. In France, lettres royales commissioned galley captains to procure prisoners condemned to death. Why that caught my eye, I don’t know. Possibly all these years of cartoons involving galley slaves. The penal death rate declined when transportation to colonies became an option, moving into the seventeenth century and out of my view.

A torture-free law of proof

The dreaded rack. Wikimedia Commons.

In Britain, the jury system replaced ordeals. Juries can convict on circumstantial evidence, so torture wasn’t needed to extract confessions. Torture was used, but for a shorter time and in a much less central role. The great majority of cases involving torture were crimes against the state: sedition, treason, or other concerted activity against the established religion.

However, more than 25% of torture warrants were issued for ordinary crimes like murder, burglary, robbery, and horse stealing. That ain’t hay. Langbein makes a clear distinction between torture and punishment though, as any good lawyer ought to do.

Peine fort et dure, for example, was a punishment, or rather a cruel form of execution. Its horrific nature captures modern people’s imaginations, so it gets more play than it deserves by an historian’s standards. This is the one where you can choose to be pressed — to have weights piled on you until you’re crushed to death — in order to evade a trial so that you can’t be formally convicted, so that your heirs can inherit your estates and titles.

Pressing had become rare but was still happening in the early seventeenth century. In 1615, Sir Edward Coke, then Chief Justice of the King’s Bench, threatened Richard Weston, one of the Overbury murderers, with pressing. First he would have weights laid upon him, little by little; then he would be exposed naked in the open air; and finally, he would be preserved with the coarsest possible bread and water from puddles. Horrible! Langbein’s point is that this is punishment, not torture. Not evidence-gathering.

Jury standard of proof

Medieval juries were “men chosen as being likely to be already informed”; that is, they knew the accused and the crime. They came more to speak than to listen. They brought the evidence. By Tudor times, juries had ceased to be self-informing. Outside officers were charged with gathering evidence and presenting it court. Lawyers took depositions from witnesses who might never appear in court.

Circumstantial evidence was presented to juries to help them reach their verdict. Langbein notes, “The trial jury required for condemnation not certainty, but only persuasion. Well into the eighteenth century there were no firm rules establishing minimum standards of evidence for conviction, and consequently no appellate review of verdicts for insufficiency of evidence.” He doesn’t say this, but I suspect torture might work against the prosecution’s case, by arousing pity in the jury. It’s well documented that juries often chose to convict on a lesser crime, because they thought the punishment required for the actual crime was too severe.

Torture warrants

Manacles. Wikimedia Commons.

A warrant had to be issued by the Privy Council before torture could be applied. Many of these survive. Torture reached its peak in England during the long war with Spain in Elizabeth’s reign. About 300 felons were executed each year during that end of the Elizabethan period, compared to 32 executions in the U.S. in 2013.Capital punishment was abolished in the U.K. in 1965.

A torture warrant would name specific investigators (Francis Bacon appears on several from1597 into the early 1600’s.) The warrant would usually name a specific method of torture, usually the rack or the manacles (hanging from shackles attached to the wall.) They had manacles at both the Tower and Bridewell, but only one rack, in the basement of the Tower.  

Here’s the warrant for John Gerard, a Jesuit priest, in 1597:

“A letter to Sir Richard Barkely, Lieutenant of the Tower, Mr. Solicitory, Mr. Bacon and William Waad, esquire. You shall understand that one Gerratt [Gerard], a Jesuit, by her Majesty’s commandment is of late committed to the Tower of London for that it hath been discovered to her Majesty [that] he very lately did receive a packet of letters out of the Low Countries which are supposed to have come out of Spain, [he] being noted to be a great intelligencer and to hold correspondence with Parsons the Jesuit and other traitors beyond the seas. These shall be therefore to require you to examine him strictly upon such interrogatories as shall be fit to be [ad]ministered unto him and he ought to answer to manifest the truth in that behalf and other things that may concern her Majesty and the State, wherein if you shall find him obstinate, undutiful, or unwilling to declare and reveal the truth as he ought to do by his duty and allegiance, you shall by virtue hereof cause him to be put to the manacles and such other torture as is used in that place, that he may be forced to utter directly and truly his uttermost knowledge in all these things that may any way concern her Majesty and the State and are meet to be known.”

The theory of torture

Bacon wrote in a memorandum for King James, “In the highest cases of treasons, torture is used for discovery, and not for evidence.”

The King and his Privy Council were immune from prosecution. They could immunize their agents by means of the warrants; without such immunity, the agents would be exposed to lawsuits for damages. William Monke was accused of conspiring against the crown and tortured with the manacles; by mistake, as it turned out. The documents accusing him were later proved to have been falsified by a couple who subsequently fled to Ireland.

Poor Mr. Monke was so injured he couldn’t work to support his family. He sued his torturers in 1627, on the grounds of battery and trespass to his person. I don’t know if he ever received any compensation. He might have, though since his torturers had a legal warrant, it isn’t likely. Still, it says a lot about the average Englishman’s respect for the law that he thought his suit might have a chance. And a lot about the immature state of the law that the poor fellow could be tortured on such slight evidence in the first place.

Two steps forward and one step back; or is it the other way around?

References

Langbein, John H. 1977. Torture and the Law of Proof. Chicago: The University of Chicago Press.

How to butter a monarch's backside

butter_wikicomFlattery was an essential art in the English Court under both Elizabeth and James, two individuals with an apparently insatiable appetite for compliments — the more outlandishly lavish the blandishments, the better.

Here’s a classic example, written by Charles Blount, Lord Mountjoy to Queen Elizabeth*:

“Sacred Majesty,

If darkness be the mother of fearful apprehensions, excuse that so long have wanted those beams of yours, that only give light and lightness to your heart, which cannot but be troubled in so tempestuous a sea, having lost the sight of my only star. But since by your divine letters I feel the influence, though I cannot see the heavenly substance, my mind shall sing in the midst of all dangers: for I cannot be so weary, but your voice will make me go cheerfully forwards; nor so sick but I shall be sound if bid me be whole.”

courtly_bow_wikicom

In the dedication to The Advancement of Learning, Bacon applied so much butter to James’ posterior it’s a wonder his Majesty didn’t slide right off the throne. Here’s a small slice of the stuff:

“Wherefore, representing your Majesty many times unto my mind, and beholding you, not with the inquisitive eye of presumption, to discover that which the Scripture telleth me is inscrutable, but with the observant eye of duty and admiration; leaving aside the other parts of your virtue and fortune, I have been touched, yea, and possessed with an extreme wonder at those your virtues and faculties, which the Philosophers call intellectual; the largeness of your capacity, the faithfulness of your memory, the swiftness of your apprehension, the penetration of your judgment, and the facility and order of your elocution: and I have often thought that of all the persons living that I have known, your Majesty were the best instance to make a man of Plato’s opinion, that all knowledge is but remembrance, and that the mind of man by nature knoweth all things, and hath but her own native and original notions again revived and restored: such a light of nature I have observed in your Majesty, and such a readiness to take flame and blaze from the least occasion presented, or the least spark of another’s knowledge delivered.”

Yowzer! I suspect Bacon was performing the requisite duty of flattery and simultaneously proving to everyone that he could out-flatter the rest.

 * Quoted on p139 of Nicholas Esler 1966 The Aspiring Mind of the Elizabethan Younger Generation.