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 asso ciates.
2. It is to be distinguished from punishment, which usually succeeds a conviction for offencec, as it was inflictod in li»tine, and as part of the intro ductory process leading to trial and judgment.
It was whoby unknown to the.common and statute law of England,.and was .forbidden by Magna Charts, _ch. 29. Coke, 24 inst. 48 ; 4 Sharswood„Blackst. Comm. 326.
It.prevailed in Scotism:1,, where the civil law obtained which, allowed. it. . Dig. 48. 18. It was, however, declared contrary to the claim of right, and was expressly prohibited, 7 Anne, c. 21, 0 5, A.D. 1708. Several instances of its infliction may be found in 1 Pitcairn's Criminal Trials of Scotland, 215, 217, 219, 375, 376, 401 ; 3 id. 170, 196, 220, 222, 238 et seq.
3. Sir John Kelynge, in the time of Hale, says, persons standing mute were also com pelled to answer, by tying their thumbs to gether with a whip-cord, and that this was said to be the " constant practice at New gate." Rely. 27.
Although torture was confessedly contrary to the common law of England, it was, never theless, 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 ;
I Rush. Coll. 638.
4. In 1596 a warrant was issued to the attorney-general (Sir Edward Coke), the solicitor-general (Sir Thomas Fleming), Mr. Francis Bacon, and the recorder of London, to examine four prisoners " upon such arti cles as they should think meet, and for the better boulting forth of the truth of their in tended plots and purposes, that they should be removed to Bridewell and put to the mana cles and torture." Mr. Jardine proves from the records of the privy council that the practice was not unfrequent during the time of Elizabeth, and continued to the close or the reign of the first two Stuarts. There is positive evidence that Guy Fawkes was di rected to be tortured in regard to the Gun powder Plot, in the warrant in the king's handwriting authorizing the commissioners, of whom Colce was one, to examine him upon the rack, " using the gentler tortures first, et sic per gradus ad ima tenditur." 1 Jardine, Crim. Trials, Int. 17 ; 2 id. 106.
This absurd and cruel practice has never obtained in the United States ; fur no man is bound to accuse himsel£ An attempt to tor ture a person to extort a confession of crime is a criminal offence. 2 Tyl. Vt. 380. See QUESTION ; FEINE FORTE ET DURE.