From John Fortescue (c. 1390s – c. 1470s), De Laudibus Legum Angliae [translated as A Treatise in Commendation of the Laws of England (1874)], pages 71-77:
Many like instances you may have heard of, where justice has been perverted by means of false witnesses; even under judges of the greatest integrity, as is notorious to those, who converse with and know mankind. This sort of wickedness, alas! is but too frequently committed.
Chap. XXII.–Concerning Torture and putting to the Rack.
For this reason, the Laws of France, in capital cases, do not think it enough to convict the accused by evidence, lest the innocent should thereby be condemned; but they choose rather to put the accused themselves to the Rack, till they confess their guilt, than rely entirely on the deposition of witnesses, who, very often, from unreasonable prejudice and passion; sometimes, at the instigation of wicked men, are suborned and so become guilty of perjury. By which over cautious, and inhuman stretch of policy, the suspected, as well as the really guilty, are, in that kingdom, tortured so many ways, as is too tedious and bad for description.
Some are extended on the rack, till their very sinews crack, and the veins gush out in streams of blood: others have weights hung to their feet, till their limbs are almost torn asunder, and the whole body dislocated: some have their mouths gagged to such a wideness, for a long time, whereat such quantities of water are poured in, that their bellies swell to a prodigious degree, and then being pierced with a faucet, spigot, or other instrument for the purpose, the water spouts out in great abundance, like a whale (if one may use the comparison) which, together with his prey, having taken in vast quantities of seawater, returns it up again in spouts, to a very great height. To describe the inhumanity of such exquisite tortures affects me with too real a concern, and the varieties of them are not to be recounted in a large volume.
The Civil Laws themselves, where there is a want of evidence in criminal cases, have recourse to the like methods of torture for sifting out the truth. Most other kingdoms do the same: now, what man is there so stout or resolute, who has once gone through this horrid trial by torture, be he never so innocent, who will not rather confess himself guilty of all kinds of wickedness, than undergo the like tortures a second time? Who would not rather die once, since death would put an end to all his fears, than to be killed so many times, and suffer so many hellish tortures, more terrible than death itself?
Do you not remember, my Prince, a criminal, who, when upon the rack, impeached (of treason) a certain noble knight, a man of worth and loyalty, and declared that they were both concerned together in the same conspiracy; and being taken down from the rack, he still persisted in the accusation, lest he should again be put to the question. Nevertheless, being so much hurt and reduced by the severity of the punishment, that he was brought almost to the point of death, after he had the Viaticum and Sacraments administered to him, he then confessed, and took a very solemn oath upon it, by the body of Christ; and as he was now, as he imagined, just going to expire, he affirmed that the said worthy knight was innocent and clear of every thing he had laid to his charge: he added, that the tortures he was put to were so intolerable, that, rather than suffer them over again, he would accuse the same person of the same crimes;[*] nay, his own father: though, when he said this, he was in the bitterness of death, when all hopes of recovery were over. Neither did he at last escape that ignominious death, for he was hanged; and, at the time and place of his execution, he acquitted the said knight of the crimes wherewith he had, not long before, charged him.
Such confessions as these, alas! a great many others of those poor wretches make, not led by a regard to truth, but compelled to it, by the exquisiteness of their torments: now, what certainty can there arise from such extorted confessions; but, suppose a person falsely accused should have so much courage, so much sense of a life after this, as, amidst the terrors of this fiery trial, (like the three young Jews of old, Dan. iii.) neither to dishonour God, nor lie to the damnation of his soul, so that the judge should hereupon pronounce him innocent: does he not with the same breath pronounce himself guilty of all that cruel punishment, which he inflicted upon such person undeservedly? And how inhuman must that law be, which does its utmost to condemn the innocent, and convict the judge of cruelty? A practice so inhuman deserves not indeed to be called a law, but the high road to hell.
O judge! in what school of humanity did you learn this custom of being present and assisting, while the accused wretch is upon the rack. The execution of the sentence of the law upon criminals is a task fit only for little villains to perform, picked out from amonsgt the refuse of mankind, who are thereby rendered infamous for ever after, and unfit to act, or appear, in any Court of Justice. God Almighty does not execute his judgments on the damned by the ministration of angels, but of devils; in purgatory, they are not good spirits, which torment and exercise souls, though predestinated to glory, but evil spirits. In this world, the wicked, by the permission of God, inflict the evil of punishment on sinners. For, when God said (1 Kings xxii. 20), “Who shall persuade Ahab that he may go up and fall at Ramoth Gilead,” it was an evil spirit which came forth and said, “I will be a lying spirit in the mouth of all his prophets:” though God, for just reasons, had determined to suffer Ahab to be persuaded, and deceived by a lie, yet was it by no means becoming a good spirit to be employed on such an errand.
Perhaps, the judge will say, I have done nothing of myself in inflicting these tortures, which are not by way of punishment, but trial; but, how does it differ, whether he does it himself, while he is present on the bench, and, with reiterated commands, aggravates the nature of the crime, and encourages the officer in the execution of his office. It is only the master of the ship who brings her into port, though, in pursuance of his orders, others ply the steerage: for my own part, I see not how it is possible for the wound, which such a judge must give his own conscience, ever to close up, or be healed; as long, at least, as his memory serves him to reflect upon the bitter tortures so unjustly and inhumanly inflicted on the innocent. [**]
[Footnotes from the 1874 edition:]
[*] The reader will be struck with the similarity between this relation and the language of Felton, when he was threatened with the rack. (Whitelocke’s Memorials, p. 11.)
[**] The passages in the text will be read with interest, as exhibiting a very early protest on the behalf of injured humanity against the Law of Torture. It must, however, be observed, that the imperial Code, however deserving of reprobation, for countenancing the application of torture under any circumstances, contained many restrictions on the use of it; in particular, to constitute a sufficient cause for condemnation to the rack, there must have been one witness against the prisoner, accompanied with pregnant presumption of guilt, or an extradjudicial confession proved by two witnesses. On the other hand, the annals of our own country have been deeply stained by the adoption of this inhuman practice.
(See a Collection of Instances, in which Torture has been used in England, from the early mention of it, in the Proceedings against the Templars, tem. Edw. II, till the Declaration of the Judges on the Occasion of Felton’s Trial, Barrington’s Observations on West. I. and 27 Hen. VIII; Rose’s Observations on Fox’s History, and Heywood’s Vindication of that Work; Grey’s Hudibras, Part II., Canto ii., l. 335; Ellis’s Original Letters, Vol. II., p. 261; Brodie on the British Empire, Vol. I., p. 236, Vol. II., p. 207-209; Retrospective Review, No. xviii.; from the Manuscript of Sir S. Romilly, Observations on the late Continuance of Torture in Great Britain, Archaeol. Antiq. Soc., Vol. X. For a Defence of the use of Torture, see “the Law of Laws,” by Sir R. Wiseman, published A. D. 1664; for a description of the Rack, see Strait’s Antiq. Vol. III., p. 46.)
In persuing the horrible catalogue of examples of the use of torture in Great Britain, one is shocked to find, subscribed to warrants directing its infliction, the names of individuals, conspicuous for singular zeal either in the prosecution of philosophical truth, or the vindication of political liberty. This disgrace is attached to the characters of Lord Bacon, Sir E. Coke, and William the Third. (Vol. X., Archaeol. Antiq. Soc.; Rose, p. 179; 1 Scott’s Somers’s Tracts, 211.)
The last of these eminent persons was indeed a foreigner, and did not infringe the law of the country in which he commanded torture to be applied, for until the time of the Union, it was permitted by the Law of Scotland. (Sir G. Mackenzie’s Criminal Law, p. 543; Stair’s Institutes, 699.)
And Sir E. Coke has left to posterity, in his Institutes, an indignant censure of the practice; which he affirms to be repugnant to the letter and spirit of Magna Charta, and to be unsupported by any one legal authority of judicial record. It is observable, that in this part of his works, he pays a just tribute of praise to the opinion of Fortescue, which he adopts as the foundation of his own. It may not be too much to say, that the sentiments which are expressed in this chapter, are not only honorable to the writer of them, but have had a practical and highly beneficial influence on the jurisprudence of the country.
Montesquieu has descanted upon the example of England, as being a nation, among whom torture had been abolished, and no inconvenience had resulted from the want of it: Sir Thomas Smith, in his Republic, written in the reign of Edward the Sixth, takes pains to prove that torture is repugnant to the character of the people in this country. The adoption of it on the continent is, in a great measure, owing to the sanction given to it in a code of laws composed by Charles V., called the Carolina. It was abolished by the Code Napoleon: but there exists in France a species of mental torture, called Le Secret, which has been depictured by the writers of that nation in the most frightful colours. (Observations sur Plusiers points importans de notre Legislation Criminelle par M. Dupin; De la Justice Criminelle en France par M. Beranger.)
It will always be recollected, that many foreign writers, whose views have soared above the confined principles of the Governments under which they lived, have followed in the same wise and liberal track, in which they were preceded by Fortescue. Among these the name of Beccaria, connected with every thing that is humane in the administration of justice, stands conspicuous.
The observations of Montesquieu on the subject are remarkable:
“Tant d’habiles gens et de beaux genies ont écrit contre cette pratique, que se n’ose parler après eux. J’allois dire qu’elle pourroit convenir dans les gouvernements despotiques, ou tout ce qui inspire la crainte entre plus dans les ressorts du gouvernement; J’allois dire que les esclaves chez les Grecs et chez les Romains–mais j’entends la voix de la nature qui crie contre moi.”
Voltaire has expressed his sentiments upon this practice in a strain of eloquence dictated by the most enlightened philosophy, and the tenderest feelings of the heart:
“Ici un spectacle effrayant se presente tout-à-coup a mes yeux, le juge se lasse d’interroger par la parole; il veut interroger par les supplices: impatient dans ses recherches, et peut-être irrité de leur inutilité, on apporte des torches, des leviers, et tous ces instruments inventés pour la douleur. Un bourreau vient se mêler aux fonctions de la Magistrature, et terminer par la violence un interrogatoire commencé par la liberté–Douce philosophie! toi qui ne cherche la verité qu’avec l’attention et la patience, t’attendais-tu que dans ton siècle on employât de tels instruments pour la decouvrir.” (L’Homme aux quarante ecus.)
(Italics in the original; I have added paragraph breaks for readability.)
The Montesquieu appears to be from The Spirit of Laws, and is translated here as:
So many men of learning and genius have wrote against the custom of torturing criminals, that after them I durst not presume to meddle with the subject. I was going to say that it might suit despotic states, where whatever inspires fear is the properest spring of government; I was going to say that the slaves among the Greeks and Romans–But I hear the voice of nature cry out loudly against me.]
I found the Voltaire translated here as:
“Here a dreadful spectacle at once presents itself to my view; a judge tired with interrogating the prisoner by questions, has a mind to interrogate him by torture: Impatient in his researches, and perhaps irritated at their inutility, torches, chains, levers and all the instruments invented for torturing are brought. An executioner takes a share in the functions of magistracy, and finishes by violence an interrogatory began with liberty.
“Mild and gentle philosophy, thou who seekest truth only with care and patience, didst thou expect that in thy age such instruments would be used to discover it?