288
Constitutional History.
[chap.
Gross
cruelties.
Practice of
torture.
Instances
of its em-
ployment.
war, the earlier political executions, the long series of blood-
feuds dating from the beginning of the fourteenth century, the
generally inhuman savageness of the criminal judicature, all
tended the same way. Edward IV and Eichard III are not
condemned because they shared the character of their times,
but because under their influence that character, already
sanguinary, took new forms of vindictive and aggressive energy.
The cruel executions of persons taken in armed resistance, of
which men like Tiptoft and Montague bear the immediate
responsibility, may be extenuated as exceptional, as the neces-
sary results of civil strife, or as the ordinary action of wild
martial law ; yet Tiptoft, the cultivated disciple of the Renais-
sance, has an evil pre-eminence as the man who impaled the
dead bodies of his victims, and thus exceeded even the recog-
nised legal barbarities ; and Montague went beyond precedent
in murdering his prisoners.
The practice of torture for the purpose of obtaining evidence
from unwilling witnesses is another mark of the time. Sir
John Fortescue alleges the use of torture as a proof of the
inferiority of French to English law1 ; meaning thereby, as it
is argued, not that the practice was unknown altogether, but
that it was employed only under the prerogative authority of
the crown, and not under the common law. It is under
Edward IV however that we find the first recorded instances in
medieval history of its use in England. In 1468 aman named
Cornelius, who carried letters of Queen Margaret, was burned
in the feet2 to make him betray his accomplices; John Haw-
1 Fortescue, (IeLaudibus, c. 22.* Sir T. Smith, strangely enough, writing
in 1565, repeats the statement; Commonw. bk. ii. c. 27. That torture
was not altogether unknown in England is certain. Mr. Pike, History of
Crime, i. 427, adduces from the Pipe Roll, 34 Hen. II, the case of a man
who was fined ‘ quia cepit quandam Jnulierem et earn tormentavit sine
Iicentia régis;’—Edward II gave leave for the application of ‘ quaestiones ’
in the trial of the Templars; Wilk. Cone. ii. 314; Foedera, ii. 118, 119.
In the 22 Edw. Ill a commission was issued to inquire into the practice
of torturing men by gaolers to compel them to become approvers ; Pike,
Hist. Cr. i. 481. Jardine, in lɪis ‘ Reading on Torture,’ concludes that the
practice was allowed by royal licence, and was known to the prerogative
although not to the common law. His argument that the silence of the
Records proves the commonness of the usage is not conclusive.
2 W. Worcester, p. 789.
•7'ιtιlicial АЬгяея.
289
XVIII.]
kins, one of the persons whom he mentioned, was racked, and
he accused Sir Thomas Cook, an aiderman of London. Cook
was tried by a jury before a special commission of judges, one
of whom, Sir John Markham, directed the jury to find him
guilty of misprision, not of treason. The jury complied and
Markham was deprived of his judgeship ɪ. The tradition of the Therackin
Tower, that the rack, which bore the name of the duke of
Exeter’s daughter, was introduced by John Holland, duke of
Exeter and constable of the tower under Henry VI2, may not
be entirely unfounded : the Hollands were a cruel race, and
the duke of Exeter, who was one of the bitter enemies of the
Beauforts, was an unscrupulous man who may have tortured
his prisoners. Here however is the first link of a chain of
horrors that run on for two centuries.
Another abuse which had the result of condemning its agents Jurisdiction
to perpetual infamy was the extension of the jurisdiction of the stable.
High Constable of England to cates of high treason,' thus
depriving the accused of the benefit of trial by jury and placing
their acquittal or condemnation in the hands of a political
official. When Edward IV, early in his reign, gave the office
of constable to Tiptoft, lie invested him with unparalleled Powers con-
ɪ tided to him.
powers ; he was to take cognisance of and to proceed in all
cases of high treason by whomsoever they might be initiated ;
to hear, examine, and conclude them, ‘ even summarily and
plainly, without noise and show of judgment, on simple inspec-
tion of fact ; ’ just as the ecclesiastical judges did in cases of
heresy ; he was to act as king’s vicegerent, without appeal
and with power to inflict punishment, fine, and other lawful
coercion, notwithstanding any statutes, acts, ordinances, or
restrictions made to the contrary3. Similar powers were con-
1 Foss, Biogr. Jur. p. 435 ; Stow, p. 420, says that Hawkius wa⅛vracked
on the brake called the duke of Exeter’s daughter. The factitious speech
of the duke of Buckingham in 1483 (above, p. 230) implies that Cook
himself was tortured.
2 Coke, 3 Inst. p. 35, represents it as a part of a scheme which John
Holland, duke of Exeter, and the unfortunate duke of Suffolk contrived
for introducing the civil law into England ; they were however personal
enemies and rivals, Exeter being a close ally of duke Humfrey.
3 Edward, in the patent of Aug. 24, 1467, by which he appointed lord
Hivers, rehearses that of Feb. 7, 1462, by which Tiptoft was appointed,
VOL. III. U