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VI.

designs; that has saved him from the torture."*

Argyle SECTION himself does not deny that he made discoveries, but in his letter to Mrs. Smith writes that he had mentioned no pames, except hers and a few others, which it was impossible to conceal.

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Passing over Mr: Rose's Observations upon the use Torture in of torture in Scotland, it may be remarked that he does in England to not seem to be perfectly acquainted with the history of fession. torture in the southern part of this island. To the Law of England he is certainly justified in saying, from the highest authority, that it is utterly unknown, but he is not accurate in stating the case of Felton, who murdered Rose, p. 181. the Duke of Buckingham, to be the only instance of an attempt to exercise it here, except when there was a design to introduce the civil law in the reign of Henry the Sixth, and except also the actual application of the rack in some cases of treason in Queen Mary's time, mentioned in a note preceding bis Appendix. . If Mr. Rose had referred to Mr. Justice Blackstone's Commentaries, aś Bl. Com. we find him doing upon other occasions, he would have learnt that the use of the rack was not confined to the few instances mentioned by him. In the reign of Henry the Sixth, the rack or brake bad been placed

iv. p. 326.

* Le Comte D'Argile a été executé à Edinbourg, et a laissé une ample confession par ecrit, dans laquelle il découvre tous ceux qui l'ont secouru d'argent, et qui ont aidé ses desseins; cela lui a sauvé la question.

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SECTION by the Earl of Exeter in the tower, when he and the

Earl of Suffolk had formed the design of introducing the civil law into England. It was called Exeter's daughter, and remained afterwards in the tower, “ where it was occa“ sionally used as an engine of state, more than once in the “ reign of Elizabeth.It may be suspected, from Mr. Rose having borrowed in part the expression of Blackstone, that he was aware of the before mentioned passage, but misunderstood it. Though the use of the rack does not appear to have been known in this country until the 26th year, of the reign of Henry the Sixth, and though it was never authorized by the law, yet to borrow the expression of Mr. Justice Blackstone, as “ an Engine “ of State," it was occasionally used to extort confession from state prisoners confined in the tower, from the time of its introduction, until finally laid aside in consequence

of th decision of the Judges in Felton's case. One Fuller's Wor- Hawkins was tortured in the reign of Henry the Sixth. thies, p. 317.

And it is surprizing that the interesting case of Anne Burnet's Re. Askew in the reign of Henry the Eighth, could have ii. p. 389. escaped the memory of Mr. Rose; the Lord Chancellor

Wrottesley, went to the tower to take her examination, and, upon the Lieutenant refusing to draw the cords tighter, drew them himself till her body was nearly torn asunder*. In Mary's reign, Mr. Rose has observed that

orm. i. p. 325.

* 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.

VI.

several persons were racked in order to extort confessions, SECTION
which was upon occasion of Sir Thomas Wyatt's rebellion.
And Barrington mentions that in Oldmixon's History of Carod. Britt.
England, (p. 284.) 'one Simpson is said to have been
tortured in 1558, and a confession extorted.

Pap. p. 9, 101.

In the beginning of the reign of Elizabeth, the rack Coll. Ecc. Hist. was used upon state offenders, among others, Francis Murden's Stat. Throgmorton; in 1571, upon Charles Baillie an attendant upon the Bishop of Ross, Mary's Embassador, 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 Coll

. Ecc. Hist. was put upon the rack, and in 1585, Thomas Morgan Murden's Stat. 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, which I have found, of the actual application of torture, to extort confession.

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Pap. p. 452.

Statutes, p.496,

For the greatest 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, that among the MS. papers Obs. on ancient of Lord Ellesmere, is a MS. copy of Instructions to note. him, as the Lord President of the Marches, to use it on the taking of some examinations at Ludlow; and Sir Edward Coke himself, in the year 1600, (the 43d of Elizabetli's reign) then being Attorney General, at

St. Tr. i. 199.

VI.

12 Rep. p. 96.

SECTION the trial of the Earls of Essex and Southampton, boasted

of the clemency of the Queen, because though the rebellious attempts were so exceeding 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 Jac. 1.) when Chief Justice, in enumerating the privileges of the nobility, he mentions as one, that their

bodies were not subject to torture in causa criminis læsa Obs. on Stat. majestatis. Barrington justly observes there was a regular

establishment for torture, for, at his trial, 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

6. Kemish was never on “ the rack, the King gave charge that no rigour should be used.

P. 495.

Stat. Tr. i. p. 291.

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Barrington mentions that Sir John Hayward, the historian, was threatened with the rack, which Dr. Grainger 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 had been questioned, though it has been

said by high authority, as will be stated presently, SECTION 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 orders of the Privy Council or the King, without any objection being made to their authority.

In the third year of the reign of King Charles the First, Felton was threatened with the rack by the Earl of Dorset in the Tower, and Laud 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 (then Bishop of London) 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, it 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 Car. 2.) Elizabeth Cellier was St. Tr. iii. tried at the Old Bailey before Mr. Baron Weston for the

p. 99.

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