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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.

Everyday sedition: Women and religion

We tend to look at centuries past from a broad perspective. We note that in the sixteenth century religion and politics were intricately intertwined. We know that in the past, nearly everywhere on earth, and even now in the so-called first world, that politics in the broad sense is a game played by men. We have learned how restricted women’s roles were in the sixteenth century; legally, they had almost no standing. They couldn’t hold public office, attend universities, preach, or even just go out and find a job in an office or a shop, except to clean the place.

We look at the published records of political events and conclude that women were powerless victims or manipulated tools, apart from the occasional queen. That conclusion is not entirely correct, at least not in the Elizabethan period.

Religion begins at home

Portrait of Chiara Albini Petrozzani with their children in prayer. Painting attributed to Pietro Facchetti (1535 or 1539-1619). Mantua, Palazzo Ducale. Credit: DEA / G. Cigolini Getty Images

Religious people generally begin to inculcate their children from birth. Certainly fathers have a role in this, often a very strong one. The expectation in the sixteenth century was that male heads of household laid down the law of religion in their homes just as male governors laid down the law of the land. Objection from the wife wasn’t likely, since common religion was a major factor when choosing a mate. Once that law was defined, however, it was the mother who taught the rules and enforced compliance on a daily basis.

Mother managed the household routine from rising to going to bed. Wake, rise, pray, dress, eat breakfast, feed chickens; how is that list ordered under her roof? If she could read, she probably taught her children to read from the family bible. She made sure everyone said their prayers at the appointed times and in the appointed fashion and got everyone dressed appropriately and herded to church at the appointed time.

If she was the wife of a prosperous man — a gentleman or substantial yeoman or merchant — she also had a household full of servants to keep on the straight and narrow, if she was the straight and narrow kind; not everyone was. Individual families varied considerably as to actual practice, even though attendance at church on Sunday was officially mandatory. You could daydream through the services if you wanted, after all, thinking about who you’d meet at the tavern afterwards.

Religious dissidents

The idea of religious tolerance was many long years in the future. Everyone believed that everyone ought to believe the same thing; at least, that was everyone’s public opinion. Privately, people insisted on doing what they wanted, the way people everywhere continually insist on doing. (You’d think the authorities would get a grip on this fundamental concept.) English persons who were mild about religion in the first place, or who genuinely agreed with the queen, shifted easily into the beliefs and practices of the established church. Others dug in their heels.

Catholics were the most notoriously non-compliant. They clung to their old religion — their saints and icons, their incense and masses, their rosaries and counted prayers — in spite of considerable risk to their lives and property. I can’t tell you why, but I can tell you how: the women did it.

Women maintained private chapels or transformed the library into a place of worship twice a day. They purchased and kept in order altar cloths, candles, incense, wine — everything needful. They hired like-minded servants and compelled their loyalty by all the usual means (persuasion, salaries, possibly sometimes threats.) They offered house-room to priests who slipped off to the Continent to be educated and then slipped back to sustain the faithful and make new converts. They passed banned books and pamphlets from household to household.

This is work, ladies and gentleman; this is active sedition on a daily basis. Without these women and these sheltering households, Catholicism would have vanished shortly after Elizabeth ascended to the throne. Men can yak away in their parliaments and council chambers, but the humble home is where the rubber meets the road.

The untouchables

These women were very difficult to prosecute, thanks to their stunted legal status. Married women were almost non-persons. How can you arrest a non-person? “[A]lthough wives could be indicted and convicted, they could not be fined, and forfeiture could not be made nor distraints levied upon them during their husband’s lifetime, since the wife had no property of her own to distrain (Rowlands, p. 152.)”

Their husbands could be prosecuted, and if the husband died, the widow might lose up to 2/3 of her jointure, but that doesn’t seem to have discouraged many Catholic women. But “even if the recusant was indicted, the ultimate penalty for refusing to appear was outlawry, and this could not be imposed in the case of a married woman. She had no property or civil rights and could only be ‘waived’ (Rowlands, p. 152.)”

Widows were impossible, thorns in the sides of the authorities. In 1586, Parliament passed an Act attempting to clarify measures that could be taken against recalcitrant wives, to little avail. The mighty men of Parliament and Privy Council debated the issue again and again between 1591 and 1593. “In the year of the Armada, 1588, the Sheriff of Cambridge begged to know how to proceed against women recusants ‘whom he dare not presume to apprehend without advice’ (Rowlands, p. 153.)”

I envision a haughty, disdainful, righteous middle-aged woman standing in the hall in full regalia — skirts some 60″ in diameter — facing a pair of young constables or even justices of the peace with their hats in their hands, wondering if their mothers have any idea what nonsense they’re perpetrating at this moment. “I hope not, Madam,” they say as they back steadily out the door to make their escapes.

Some women were arrested of course, and prosecuted, and imprisoned, and sometimes even hanged. These would be your honest tradeswomen, not gentlewomen. Only 3 women were executed for harboring priests during this period, however, compared with 27 men.

More thorns on the other side

Catholics, as we have seen, weren’t the only contributors to religious strife in Elizabeth’s time. Many people believed the official church had not gone far enough up the road to Reformation. Churches still had altars; ministers were still called ‘priests’ and still wore Romish costumes. Why would anyone want anything but plain bread served to everyone around a plain table?

The official policy sought to constrain, contain, or even imprison radical Protestants, even though they had sympathizers at the highest levels, like the Earl of Leicester, Elizabeth’s favorite. One of the many things I love about her was her staunch refusal to be pulled out of the middle, religiously speaking.

Here again, women, especially widows, played a sustaining role. Lady Anne Bacon sheltered a changing community of non-conformist preachers who had been expelled from their native parishes for being too radical. I can’t find those notes now, but I think Robert Browne may have spent some weeks at Gorhambury enjoying her hospitality. She thumbed her nose at the authorities, relying on her status as the widow of a Lord Keeper and sister-in-law of the Lord Treasurer.

Punishment that fits the crime

The better sort of religious dissident, if punished at all, might be sent to live with a family known for their staunch and centrist Protestantism. Margaret Throckmorton, Catholic matriarch of a very troublesome family, was put in the care of the Dean of Gloucester. In practice, that meant she was supervised by the Dean’s wife, with whom she doubtless spent many hours sewing in the parlor.

Aren’t we glad we weren’t there? Although now that I think of it, it could be fun to put my characters into such a household at such a time. You know somebody was thinking about murder, stitch by long-suffering stitch. The picture shows some of Mary, Queen of Scots work, done perhaps during her long years in the custody of the unshakeable Countess of Shrewsbury, aka Bess of Hardwick.

References

Rowlands, Marie B. 1985. “Recusant women 1560-1640,” in Prior, Mary, ed. Women in English Society 1500-1800. Pp. 149-180. London: Methuen.

 

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