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lar course ? because, though he loved power, he could not sacrifice to it his zeal for the Catholic religion, in which he really seemed to think the felicity of his future life was involved. It is said that he embraced popery, to confirm his interest with foreign powers; but it should be remembered, that Charles declined the proffered assistance of Colbert, declaring that nothing was so likely to occasion a revolt of the whole nation, as to shew them that he could support his authority by foreign forces. Strange infatuation that knowing so much, he should have acted as he did!
The comments of the serjeant in p. 216, on the strong expressions of Mr. Rose in denouncing the conduct of the royal brothers, we do not think are correspondent to the candour with which his remarks are in general characterised.
The bill for the preservation of the person of James did certainly alter very materially the law concerning treasons. It will hardly be disputed by any lawyer but that Mr. Rose was mistaken, if he meant to include in his general proposition, that the conspiring to levy war against the king is a substantive act of high treason, within the statute of Edward the Third. We believe it to be perfectly established, upon the authorities of Mr. Justice Foster, Lord Chief Justice Holt, and Lord Chief Justice Mansfield, that conspiring to levy war may be an overt act of compassing the king's death, where there is evidence of a purpose and design thereby to destroy the king or to depose him. The temporary statute of James, above alluded to, made the bare conspiracy to levy war a substantive act of high treason.
The commencement of the doctrine of the divine right of kings in this country seems very properly to be assigned by the serjeant to the æra of the Reformation. We regret our want of room to lay his reasoning before the reader. Not that this was a genuine fruit of the Protestant religion, God forbid! but we are to recollect that the genuine effects, and if we may so say, the natural vegetation of Protestantism, was anticipated in England; and it was a great misfortune to it, that such a tyrant as Henry the Eighth had any hand in watering its roots. Thinking of the divine right of kings as we do, we cannot disagree with Mr. Fox in his observation, that it was a disgrace to the country that Charles the Second was permitted to prosecute his unisgovernment to the end.
We have already thrown out some observations on the general character of the Duke of Monmouth. We shall yield, therefore, to our want of room, by making no further mention of him; except that it is absolutely due to Mr. Fox to class the
account, which he has given us of that unfortunate nobleman, among the best specimens of biographical writing. The delineation of Argyle's character, and the narrative of his misadventures, interest us no less; he has chiselled out the statue with the strokes of a Phidias, and has made it a monument of his own genius, while any relish of chaste diction and natural pathos shall exist in this country. Something, however, he has left wanting (which he inight easily have supplied from existing documents), to the perfect delineation of that great man. Instead of ascribing all Argyle's excellent qualities to his natural disposition, it was due to the cause of religion to give them to a higher origin. From Woodrow we learn that, for several years previous to the last act of his life, Argyle had become fully impressed with the sublime truths of the Gospel
, which had shed its most amiable influences on his mind. There can scarcely be a more interesting picture of the specific effects of Christianity on the heart of man, than that which his letters, during this period, present. They show him to be as much above other heroes, as Christian courage transcends constitutional bravery, or that which springs from the impulse of human motives. We will not enter into the difference between Mr. Rose and Mr. Serjeant Heywood, on the comparative merits of Montrose and Argyle. Clarendon seems to suggest the best distinction, by saying of Montrose, that he was more admirable than amiable. Argyle, with equal courage, possessed more of that softness, which, in our opinion, gives infinite attraction to heroism.
We cannot help being convinced, by Mr. Serjeant Heywood's reasoning, that the torture was at one time intended to be inflicted on Argyle. The torture was then in common use in Scotland; and some of the words of the warrant for Argyle's execution bear strong symptoms of such an intention. The words are these : “ That you take all ways to know from him what concerns our government must.” As we have indulged ourselves in but few extracts in this article, our readers will readily excuse us for presenting them with the serjeant's interesting detail of the instances, in which torture to extort confession has been used in England.
Passing over Mr. Rose's observations upon the use of torture in Scotland, it may be remarked that he does not seem to be perfectly acquainted with the history of 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 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 his Appendix. If Mr. Bose had referred to Mr. Justice Blackstone's Commentaries, as 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 had been placed by the Earl of Exeter in the tower, when he and the Earl of Suf, folk 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 occasionally 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 the decision of the judges in Felton's case.
One Hawkins was tortured in the reign of Henry the Sixth. And it is surprizing that the interesting case of Anne Askew, in the reign of Henry the Eighth, could have 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 several persons were racked in order to extort confessions, which was upon occasion of Sir Thomas Wyatt's rebellion. And Barrington mentions that in Oldmixon's History of England, (p. 28+.) one Simpson is said to have been tortured in 1555, and a confession extorted.
“ In the beginning of the reign of Elizabeth, the rack was used upon state offenders, among others, Francis 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. În 1581, Campion the Jesuit was put upon the rack, and in 1585, Thomas Morgan writes to the Queen of Scots, that he has lieard 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.
“ For the greatest part of this reign, the application of torture in the exanıination of state offenders seems to have been in common use, and its legality not disputed. Mr. Daines Barrington says, that among the MS.
of Lord Ellesmere is a MS. copy of
* There is a small book printed in black letter containing an account of the grealment aitu trial of Anne Askew, which contains many curious particulars.
Instructions to 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 Elizabeth's reign) then being attorney general, at 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 yet out of her princely mercy no person was racked, tortured, or pressed to speak anything 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 besæ 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 adniitted they had told him he deserved it;. and Lord Howard declared • Kemish was never on the rack, the king gave charge that no rigour should be used.'
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 raçk was shewn to Guy Fawkes when under examination.
Down to this period we do not find the legality of the practice had been questioned, thongh it has been said by higher authority, as will be stated presently, 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 woull not confess he must go to the rack,' he replied, if it must be so, he could not tell whom he might nomi, nate in the extremity of torture, and, if 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 1630, (32 Car. 2.) Elizabeth Cellier was tried at the Ola Bailey before Mr. Baron Weston, for the publication of a libel, in which many circumstances were related for the purpose of inducing a belief that Prance, when a prisoner in Newgate, had been tortured there, and he was produced to prove the falsehood of the publication: The learned judge in summing up the evidence to the jury said, • But you must first know the laws of the land do not admit a torture, and since Queen Elizabeth's time there hath been nothing of that kind ever done. The truth is, indeed, in the twentieth year of her reign, Campion was just stretched upon the rack, but yet not so but he could walk; but when she was told it was against the law of the land to have any of her subjects racked, (though that was an extraordinary case, a world of seminaries being sent over to contrive her death, and she lived in continual danger) yet it was never done after to any one, neither in hex reign, who reigned twenty-five years, nor in King James's reign, who reigned twenty-two years after, nor in King Charles the First's reign, who, reigned twenty-four years after; and God in heaven knows there hath been no such thing offered in this king's reign; for I think we may say we have lived under as lawful and merciful a government as any people whatsoever, and have as little bloodshed and sanguinary executions as in any nation under heaven.' The learned judge may have been mistaken when stating Campion to be the last person racked, for in Murden's state papers, as before observed, one Atslowe is mentioned to have been tortured four years afterwards. Mr. Baron Weston states that, upon a suggestion made to Queen Elizabeth of the illegality of the practice, it was discontinued in her reign ; and thus we may account for Campion being racked with so little severity, as to be able to walk afterwards and to manage the conferences with protestant doctors during his confinement in prison.”
We have at length brought this long article to a conclusion; but we cannot take leave of Mr. Serjeant Heywood, without unfeignedly thanking him for his truly interesting and instructive researches. His matter is curious without being tedious, his diction is chaste without being frigid; and, upon the whole, we know of no writer who, as far as we can judge from the specimen now before us, is better qualified to carry on to its completion what was so well begun by his departed friend.
Art. II. Memorandum on the Subject of the Earl of Elgin's
Pursuits in Greece. Millar. 1811. W
ERE we to estimate the value of a literary publication by the extent of the work, or the ability of its execution, the subject of this article would not have obtained a place in this Review. Yet these few pages, loosely tilled and badly written, with Mr. West's two Letters to Lord Elgin in an Appendix, excite reflections and hopes of no common interest. They create, at the same time, most pleasing and most painful sentiments, by bringing at once under our view the eminence and the abjectness of the arts. They present to us, however, a most interesting prospect of their revival, and of their triumphant success in Great Britain at no distant period of time.