Kissing the Duke of Exeter's Daughter, or De Laudibus Legum Angliae...

William Blackstone, IV, 25, 326:

The rack, or question, to extort a confession from criminals, is a practice of a different nature [than pressing with stones until the torturee either offers a plea or is dead]; this having been only used [for procedural purposes] to compel a man to put himself upon his trial; that being a [substantive] species of trial in itself. And the trial by rack is utterly unknown to the law of England; though once, when the dukes of Exeter and Suffolk, and other ministers of Henry IV, had laid a design to introduce the civil law into the kingdom as a rule of government, for a beginning thereof they erected a rack for torture, which was called in derision the Duke of Exeter's daughter, and still remains in the Tower of London; where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth. But when, upon the assassination of Villiers, duke of Buckingham, by Felton, it was proposed in the privy council to put the assassin to the rack in order to discover his accomplices, the judges, being consulted, declared unanimously, to their own honour and the honour of English law, that no such proceeding was allowable by the laws of England.

It seems astonishing that this usage of administering the torture should be said to arise from a tenderness for the lives of men; and yet this is the reason given for its introduction into the civil law, and its subsequent adoption by the French and other foreign nations; viz., because the laws cannot endure that any man should die upon the evidence of a false, or even a single, witness, and therefore contrived this method that innocence should manifest itself by a stout denial, or guilt by a plain confession. Thus rating a man's virtue by the hardiness of his constitution, and his guilt by the sensibility of his nerves!...

Interesting phrase that: "...used as an engine of state, not of law..."

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• Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell, and Lord Brown of Eaton-under-Heywood (2005), A and others v Secretary of State for the Home Department, X and another v Secretary of State for the Home Department http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand.pdf
• Jeremy Waldron: Torture and Positive Law: Jurisprudence for the White House http://www.columbia.edu/cu/law/fed-soc/otherfiles/waldron.pdf
• Times: A noble vision loshttp://www.timesonline.co.uk/tol/comment/article757265.ece

Comments

[Old Ari]

A person could not be tried until he had plead Guilty or Not Guilty. Pressing was employed to force him to plead. In the case of High Treason a guilty verdict would have meant confiscation of all property, leaving a widow and children destitute. Hence refusal to plead, in such cases.Disraeli's "Curiosities etc", gives details on the Fenton case.

[andrew]

Speaking of De Laudibus Legum Angliae, I assume you've read this chapter?

http://books.google.com/books?id=zU8zAAAAIAAJ&pg=PA71&vq=%22many+like+instances%22&source=gbs_search_s

[rea]

But when, upon the assassination of Villiers, duke of Buckingham, by Felton, it was proposed in the privy council to put the assassin to the rack in order to discover his accomplices, the judges, being consulted, declared unanimously, to their own honour and the honour of English law, that no such proceeding was allowable by the laws of England.

We all know that those accomplices were Milady de Winter, and the Comte de Rochefort . . .

[Doctor Jay]

I guess I'm thinking "engine of state, but not of law" refers to using the rack as a punishment for a crime, rather than as a tool for obtaining conviction of said crime.

[jerry]

Doctor Jay, that's interesting, my take on it was that it was fine for use against foreign spys, traitors, or other non-citizens, but not for use against citizens.

[jim]

Since Guido Fawkes was tortured after the discovery of the Gunpowder Plot (the Royal instruction was "Let him be questioned closer."), we, I think, have to take the "engine of state" line as a reference to the Prerogative.

[kharris]

Old Ari,

I think there was a case of death while refusing to plead in one of the New England witch trials, with the result that the accused witch's family did keep the property.