Torture

The rack, or question, or other mode of examination by violence to the person, to extort a confession from supposed criminals, and a revelation of their associates. It is to he distinguished from punishment, which usually succeeds a conviction for offences; as it was inflicted in limine, and as part of the introductory process leading to trial and judgment It was wholly unknown to the common and statute law of England, and was forbidden by Magna Carta, ch.

29; 4 Bla. Com. 326.

It was gradually introduced throughout the Continent in the 14th-16th centuries — connected with the revival of the Roman law.

Lea, Superstition and Force 371-522.

It prevailed in Scotland, where the civil law which allowed it obtained: Dig. 48.

18.

It was, however, declared contrary to the claim of right, and was expressly prohibited; 7 Anne, c.

21, § 5 (1708).

Several instances of its infliction may be found in Pitcairn’s Criminal Trials of Scotland. Although torture was confessedly contrary to the common law of England, it was, nevertheless, often employed as an instrument of state to wring confessions from prominent criminals, — especially in charges of treason. It was usually inflicted by warrant from the privy council.

Jardine, Torture 7, 15, 42.

Mr. Jardine proves from the records of the privy council that the practice was not infrequent during the time of Elizabeth, and continued to the close of the reign of the first two Stuarts. There is positive evidence that Guy Fawkes was directed to be tortured in regard to the Gunpowder Plot, in the warrant in the king’s handwriting authorizing the commissioners, of whom Coke was one, to examine him upon the rack, “using the gentler tortures first, et sic per gradus ad ima tenditur 1 Jardine, Cr. Tr. Int. 17; 2 id.

106.

It was not given up in England till Cromwell's time; Baldwin, Mod. Pol. Inst. 119. An attempt to torture a person to extort a confession of crime is a criminal offence; State v. Hobbs, 2 Tyl. (Vt.) 380.

See Miller v. People, 39 111. 457; Hector v. State, 2 Mo. 166, 22 Am. Dec. 454.

As to its use in suppressing the Irish rebellion in 1798, see 27 How. St. Tr. 766; see the trial of Gen. Picton, 30 St Tr. 226; 24 L. Q. R. 484; Brown, Narrations of State Trials. See Question; Peine Forte et Dure; Mute. This practice has never obtained in the United States, except in a few instances in New York under the Dutch rule. It is said bo have been used under French law in Quebec.