INSULT TO INDICTMENT
THE CRITICIAL CASE AGAINST
JAMES VI & I CRITIQUED
-- WITH REFERENCE TO --
PRIMAL BRITISH LAW
THE ROYAL PREROGATIVE IN
BY STEPHEN A. COSTON, SR.
CRITICS OF HIS MAJESTY KING JAMES VI OF SCOTLAND I OF ENGLAND
In America today the only concept more misunderstood than the use of torture in pre-modern Great Britain, is the ideal of the monarchy in general, and the life and times of his majesty King James VI & I in particular. This confusion can clearly be seen in the paired misunderstanding of both the use of torture in pre-modern England, and the reputation of James VI & I along with the critical indictments against his moral character.
Speaking in broad terms, anti-Jacobean critics have recently begun a new phase in their opposition and misunderstanding of primal English law and James VI & I. Not content with advancing their past arcane, obsolete arguments, which were products of outdated research, of the alleged "homosexuality" of James VI & I, they now offer new insults. Some have even made the bold claim that James VI & I was a "murderer" as well as a "sadist." They advance these charges based on the fact that James VI & I made use of the age established practice of torture for the crime of treason, witchcraft, and other serious felonious offenses during his reign, and occasionally sentenced convicted criminals to capital punishment under his right of royal prerogative.
Was James VI & I a murderer? Was he a sadist? Can these diatribes be sustained by the actual evidence? The answer to these questions by anyone possessed of a mind impartial must be a resounding and categorical no! Why? Simply because there is no probative objective evidence with which to sustain these vituperative tirades. It is very easy to make allegations, but it is quite another to prove them true. The negative sentiments oft expressed about the perceived lack of morality of James VI & I most often come from zealous religious critics who either don't understand the British monarchical system (especially in its primitive form), and/or their ignorance on these matters which may be compounded by their bias against James VI & I. To be honest, secular critics usually do not suffer from the religious critical deficiencies to the extent their devout counterparts do; however, yet it must be admitted that particularly American historians still unfortunately display their ignorance of persons, times and events imperial. This is understandable in that they come from a republican atmosphere they are not usually educated or informed about such matters by course. English historians too have suffered in their critical assessments of James VI & I. For example, they have given too much weight to scurrilous sources that were obviously prejudiced against Scotland. This was a common phenomenon of the time they lived. Consequently, modern British historians have inadvertently overlooked this fact, often to the peril of their review of James VI & I, hopelessly tainting their work with such bias.
Also, to this day there still is much illiteracy in England about Scottish customs and practices upon the part of the English. Regrettably, this too is a factor in many of the negative portrayals of James VI & I. Additionally, many ride the momentum that has built up over the years by the continuous over reliance upon partisan sources such as Weldon, Osborne & Peyton because ameliorative historical data has long been overlooked, neglected, and allowed to fall into disuse, it is natural that objections to the critical theory are few. This is not to say they do not exist. on the contrary, they do, however, many are hopelessly out of print and thus not available to the average reader/researcher.
Further, it is common knowledge that dirt, scandal, and smut always outsell the benign truth. How often do you read in your newspaper or see on tv that a husband was faithful to his wife, or that he lived a pure and wholesome life? You don't! What you see is a recounting of every sin imaginable, and the worst of human nature. We just aren't interested in the mundane, unadorned, boring simple truth of virtue anymore. Sadly, this methodology has infected, corrupted, and polluted the search for historical truth today.
Additionally, the type of research necessary to overcome such massive historical neglect in the case of James VI & I is staggering. Significant amounts of time along with substantial infusions of funds are a necessity to uncover the rare and difficult to find sources that have gathered dust for so long. The two enemies of the professional researcher, especially if under contract with a corporate publishing house, are time and money. This is not to say that historical analysis is not done without benefit of same; however, it is not the norm in such a corporate environment. Publishing houses are notorious for deadlines, and after all, profit is the bottom line. If content, no matter how true, conflicts with market share, guess what, content goes! Therefore, many researchers have succumbed to these pressures, after all, they believe that due to the plethora of historical works that espouse the critical case against James VI & I, any view to the contrary must not be valid. Oh, how they are wrong! Professional academia has not been, is not now, nor will ever be the sole repository for truth. Occasionally the investigative historian is left to uncover treasures left behind. This is one such case.
The current crop of denunciations of James VI & I can only grow in an environment devoid of reality. This is because they have no basis in established fact. For so long have the opinions of the few been allowed to overrule the facts of history. Far too long have the misguided notions of an elite class been permitted to subjugate the thinking of the masses. An almost unholy reverence has been attached to the "scholarship" of professional academicians that near infallibility status has been achieved in the minds of most people. What we need in today's society is to move away from our unnatural preoccupation with man made viewpoints, and ground ourselves in actual probative fact.
It is only in an atmosphere where fact overrules opinion that we can discover any historical truth on any matter. Also, we need to have a clear understanding of what law really is, and rediscover our judicial roots. Most Americans, as well as Brits, are hopelessly ignorant of their own judicial system, or even the history behind it. When we read what the law actually says, then the inane charges of James VI & I being a "murderer" and "sadist" will fade away into the obscurity they so richly deserve. We are not defending any other principle but one, and that is that people and events must be judged by the time in which they live, and not by modern misconceptions. People are "innocent until proven guilty."
The present should not be imposed upon the past any more than the past on modern events. While we can learn from the past by benefit of hindsight, we must be careful not to make either one subservient to the other. in short, the time lines of history should not be obscured. What we are doing is we are simply taking issue with frivolous assertions that James VI & I was a "murderer" and "sadist." Indeed, even a cursory examination of legal precedent in the history of English law immediately quashes such frivolous claims.
HEARSAY VERSUS BEST EVIDENCE AN INDICTMENT OF JAMES' CRITICS
Before we can begin to examine the judicial factors involved in the edicts of James VI & I with reference to the employment of "capital punishment," and use of torture in pre-modern Great Britain, we need to establish a logical framework for defining what exactly will guide our thinking on such matters. We will need to define some basic concepts which will serve to place not only the evidence in equipoise, but establish sensible boundaries to our cognitive process so as to restrain our innate tendency to employ the powers of our imagination as we all too often do.
Firstly, whenever a indictment of moral turpitude is advanced towards anyone, we need to examine the quality of the purported evidence being offered which supposedly incriminates the accused, and we need to investigate the motives of the person(s) presenting us with this information. Is there a bias on either the part of the witness or herald against the accused? If so, what is the bias, and to what degree is its extent? Of course we must not fail to ask ourselves, "what exactly is the offered evidence, the quality, nature, and circumstance, and form?" This is important because if we fail to ask these basic questions we will more often than not be fooled into accepting gossip, supposition, theory, conjecture, and opinion as fact which they can never be. Once we have ascertained the weight and sufficiency of the evidence, be it hearsay or eyewitness, only then can we begin to arrive at an informed conclusion.
This brings us to the next question, just what is the "best evidence" with which to make a determination on any matter, particularly one in dispute? This question has been answered for us by a long tradition of legal precedent. The "best evidence" according to well researched historical, and standard legal works is "primary evidence, as distinguished from secondary; original, as distinguished from substitutionary; a written instrument is itself always regarded as the primary or best possible evidence of its existence and contents; a copy or the recollection of a witness would be secondary evidence".
With regard then to the average passing claims that James VI & I was a "homosexual" the evidence of record is totally void of even one "eyewitness" to this conduct. Not only that, but the "best evidence" as defined above is in fact the only evidence of record extant in the case, and this evidence clearly establishes that James VI & I was "heterosexual."
There are a myriad of secondary complaints leveled against James VI & I (e.g., "profane swearing, drunkenness, crypto-roman catholicism, lewdness, etc."). However, these all fall into the same category evidentiary speaking, in that they all are founded upon the same documentary basis as the claim of James VI & I's alleged "homosexuality" namely upon gossip, speculation, innuendo, theory, conjecture and opinion. The fact that all of these imputations are classified by English law as "offenses against religion " does not seem to cross the mind of the critics of James VI & I.
You see in Great Britain their system of jurisprudence is similar to our own legal system in many ways, but not without important distinctions. (this is only a sampling for illustration & comparison)
PRE-MODERN ENGLISH LAW CATEGORY
AMERICAN LAW COMPARISON
INTERNATIONAL LAW COMPARISON.
If James VI & I had been guilty of what his critics allege, then he would have been in violation of British Ecclesiastical Law. While indirect fornication between a male and a female might have been overlooked in the general society, homosexuality was not tolerated. Lawrence Stone notes that "The sixteenth century inherited from the medieval church a strong hostility to homosexuality, which over time, became closely associated in official thinking with religious heresy as late as 1772 a Captain Robert James was executed for this (homosexuality) crime. The normal punishment for attempted sodomy was the pillory, but in more than one case this was the equivalent of the death penalty. Such was the fury of the mob, apparently mostly women, that they would sometimes pelt, stone or whip the victim to death, shouting `cut it off,,' `shave him close,' `flog him,' etc." It was not until the 18th century that homosexuality could even have been said to begin to be tolerated.
It should be clear then that the claims of the critics of James VI & I have serious obstacles to overcome both in terms of the quality of the evidence supporting the charges which is hearsay at best, and in regards to the logical deficiencies that are inherent in the claims themselves in that they engender questions, which if the assertions are true, that would necessitate that resultant historical events would have to have taken place because of the alleged conduct, which the record of history simply does not record to have happened.
What then is the evidence, and perhaps just as important, is there any bias on the part of the claimed witnesses? The evidence is plainly speculative in nature in that there is clearly no eyewitness of the alleged homosexuality of James VI & I. Further, there is distinct bias on the part of the persons appealed to as supporting the contentions . Consequently, great care should be taken on the part of the recipient of anyone coming into contact with such manipulative allegations.
THE BURDEN OF PROOF
The earliest notion of law was not an enumeration of a principle, but a judgment in a particular case. When pronounced in the early ages, by a king, it was assumed to be the result of a direct divine inspiration . You would think today due to the frequency and severity of the criticisms of James that the allegations are the result of some twisted form of "divine inspiration." However, they are not. The reason why, as we have said, is because of the lack of proof. But whose duty is it to provide the data? Universally it is the duty of the affirmative to produce the evidence. "Affirmati Non Neganti Incumbit Probatio" "The Burden Of Proof Is Upon Him Who Affirms - Not On Him Who Denies." This is proven both in formal rules of debate, and in criminal law by the burden of proof in a prosecution. There simply is no rule to establish the contrary. The affirmative is always under this burden. It is interesting; however, that many of James critics when confronted with the revelation that they have no objective, probative eyewitness testimony to their claims, that they shy away from this principle. Some even attempt to turn the tables and insist that the negative position pick up and assume their own abandoned burden that is incumbent upon the affirmative. This can only be indicative of the tragic desperation of their case.
MURDER & SADISM
Detractors of James VI & I when making their allegation that James violated English law are fond of alleging that King James "murdered" innocent people by proscribing capital punishment in certain cases, or allowing adjudication of guilt to stand without benefit of further trial.
Of course without specifics of each particular case appealed to, one should be wary of pronouncing judgment upon such wild claims. We should not be so quick to judge that we pounce on the scantiest of "evidence" with which to make wild assertions. We must demand, and should expect no less than hard fact.
What James' critics don't understand is that under English law there were many forms a trial might take, and if the king were involved, as supreme magistrate (by ancient law and custom) , he had the right to render the final judgment in the case as supreme chancellor either if exercising his right of Royal Prerogative, or if a finding or determination of "Special Circumstances" were found to exist in that case. In a jury trial the jury renders a "verdict." In a non-jury trial the judge renders a "Judgment." These two types of trial are still practiced in both Great Britain and the United States today. Not all trials required a jury , and in fact, some trials allowed the judge sole discretion as to the proceedings. The king in pre-modern England, and in certain situations to this date, is considered the supreme judge of the land. His edicts are law, and his decisions are absolute "judgments." Some types of trials include New Trial, Public Trial, State Trial, Separate Trial, Speedy Trial, Bar Trial, Trial by Certificate, Trial by Inspection, Trial by Jury, Trial by Proviso, Trial by Record, Summary Trial, Trial by Witnesses, etc. The King was the embodiment of law in England, thus the phrase Rex Est Lex Vivens - The King Is The Living Law. The king could, no matter how many republicans may dislike it, render a decision in a case and have his decision final by virtue of the authority of his office. Is there any evidence that James VI & I was a "murderer?" No, only those who have political, racial, social, ideological, religious differences, or perhaps some others who might harbor personal animosity against James would make the charge, for no one in the legal community, either contemporary or modern, has directly made the charge backed up with irrefutable evidence. The legal communities in Great Britain have never even bothered to establish the charge, let alone voice it with evidence.
We now come to a novel charge; namely, was James VI & I a sadist because of his persecution of witches as his detractors affirm? Absolutely not! James took his lawful role as head of the Anglican Church seriously. Witchcraft was condemned by both Scottish and English law, and the penalty was death . James VI & I exercised this judgment many times ("Thou shalt not suffer a witch to live," is the Biblical injunction, Exodus 22:18). One of the main purposes for the application of "torture" was to gain confession and repentance; therefore, encouraging the guilty party to repudiate their actions. Often witches were encouraged to trust Christ, something they normally would not have done without the threat of torture. Therefore, the exercise of this provision of British law cannot be indicative of sadism on the part of James VI & I.
Another desperate polemic of the anti-Jacobeans is that they unjustly and ignorantly accuse James VI & I of unlawfully torturing people. His accusers are fond of citing Sir Edward Coke's view of common law with respect to torture : "There is no law to warrant tortures in this land ." However, they fail to realize that the use of torture had a lengthy precedent in both England and Scotland long before James VI & I arrived on the throne. Furthermore, the application of torture was not the sole jurisdiction of monarch, as the Privy Council or Star Chamber also had authority to authorize its use.
The practice of torture had authorization in criminal law, and was supported indirectly in common law by means of the exercise of Royal warrant or "Royal Prerogative." This is not all, the very charge itself reveals the ignorance of the claimant as to the specifics of not only the institution of the monarchy itself, but also the application of British law in pre-modern Europe. For example, torture was authorized by British law if supported by the exercise of "Royal Prerogative ," or if a finding of "Special Circumstances" was found to exist. This had special application to the crime of treason , which in England is an offense which has particular relevance to the person of the Sovereign, and has wide application to other crimes related.
While it is true that strictly according to common law and without benefit of royal intervention the application of torture was without direct legal warrant, it is also true that common law crimes usually addressed infractions of law not delineated specifically by statute. As we have seen in criminal law which is statutory in nature there is warrant for torture, especially when the doctrine of Royal Prerogative is exercised by the reigning monarch, which is fully recognized by British common law! As unfortunate and regrettable as the application of torture was, especially to the 20th century American mind, one must divorce his feeling from historical reality. One can recognize the fact that torture was legal in certain periods of history, but still maintain his opposition to the practice on moral grounds. Historians do not have the luxury of allowing their feelings to prejudice their portrayal of historical reality.
While those of Republican persuasion or contrary viewpoint may decry the concept of royal privilege, it is nevertheless a fact of monarchical government. The British legal system recognizes that the king has jurisdiction and preeminence in legal matters. This can be seen in the definition of the following words: Crown , Crown Cases , Crown Law .
It may shock the reader to learn that some of the anti-Jacobeans have even made an astounding recent claim. The assert that when Guy Fawkes was caught trying to blow up James VI & I and his Parliament that the punishment authorized by law via authorizing legal writ of James VI & I was illegal! When Guy Fawkes was apprehended in the act of treason, James VI & I in a writ of authorization by exercise of his legal right of Royal Prerogative, commissioned the use of torture. The anti-Jacobeans; however, claim that by James penning this letter he was transgressing English judicial procedure. Again, the ignorance can clearly be demonstrated. In fact, when James wrote the writ of authorization for Guy Fawkes to be tortured he was applying English law.
Under English law the king often enacted law by issuing a letter or writ . So, in fact, when James VI & I penned the order for Guy Fawkes torture and execution, he was fulfilling and applying English law, not violating it. James VI & I was well within his right morally and legally in proscribing the punishments he did for treason in the time he lived. How can the anti- Jacobeans continue to defy this evidence?
The indisputable fact is that this charge is indicative of the desperation of the critical case against His Majesty James VI & I. They have been afflicted by historical misunderstanding and political ignorance in the course of making their claims.
What we have seen is that some of the enemies and detractors of James VI & I will not stop at simply assassinating his character in regards to morality, they will even when confronted with overwhelming evidence turn to other specious arguments which they hope will further their case. They claim that James VI & I was immoral, yet they sometimes employ unlearned arguments which are designed to inflict damage by innuendo, and not by the real application of historical fact.
This is not to imply that they are dishonest, quite the contrary, they are sincere for the most part in their claims, but sincerely wrong and misguided by errant information which has infected their ability to think clearly on the matter.
More often than not, critics of James VI & I have not even bothered to read what James himself has written. Beyond brief quotations of his writings in secondary works James' critics are content to disparage His Majesty based on their limited understanding of his own position. In so doing they ignore age old legal maxims that have served as a basis for common law for thousands of years. One such maxim is "Audi Alteram Partem " "Hear The Other Side." Therefore, hear what James has had to say, and think before you speak, for the facts of history may be against you.
The question of the extent of kingly power naturally arises in any discussion of the use or application of torture. It will be instructive to consult some of the ancient treatises on the subject which directly speak to this issue. Firstly, in FLETA so described by Black's Law Dictionary as "The name given to an ancient treatise on the laws of England, founded mainly upon the writings of Bracton and Glanville, and supposed to have been written in the time of Edward I. The author is unknown, but it is surmised he was a judge or learned lawyer" The prologue of FLETA begins "Kingly power should be equipped, not only with arms against the rebellious and the nations that rise up against the king and his realm, but also with laws for the meet governance of his peaceful subjects and peoples" On page 2 "'the prince's pleasure has the force of law'" Speaking of criminal actions on page 34 it is noted " because the lives and members of men, whether to protect or to condemn when they do wrong, are in the power of kings and not of others In strict law it is in the court of the king alone, however, as belonging to his crown, that the chapters of the crown are to be plainly and openly determined, so that upon every offender there shall be inflicted such a penalty as his demerits demand. For penalties are devised to control men, so that those whom the fear of God will not turn from evil may at least be restrained from wrongdoing by a temporal penalty, as it is written: `Good men hate to err from love of virtue; The wicked hate to err from fear of pain." Page 35 "The king has in his hand all rights that belong to the crown and to the lay power, and the material sword that belongs to the governance of his realm. He has also the judgment seat and justice that belong to jurisdiction" Page 36 "Nor is it inconsistent with this to say that `the Prince's pleasure has the force of law,'The power of right is from God alone; the power of evil from the DevilHe (the king) has, too, the right of coercion, that he may punish and restrain offenders,, and it lies in his power to ensure that the laws, customs and assizes, enacted, approved and sworn in his realm, are steadfastly observed"
Crimes that come within the jurisdiction of the Crown are manifold, and there does not seem to be an offense that lies outside the administration of the Sovereign (see pages 46-50). See also Jardine , page 66 "It does not appear that there was any particular class of inquiries to which this mode of examination (rack) was restricted."
Next we come to BRITTON. Page xvi of the introduction notes "This treatise bears upon the face of it an assumption of royal origin ." As to the authorship it is precisely unknown, but "With respect to the authorship of the book, it was formerly the generally received opinion that it was the work of John Britton, Bishop of Hereford." This work is still considered by many an authority on law today. Chapter 1 discusses the authority of justices, and the developmental history and derivation of their judicial authority. "First, with regard to ourselves and our Court, we have ordained, that, inasmuch as we are not sufficient in our proper person to hear and determine all the complaints of our said people, we have distributed our charge in several portions, as here ordained." This principle is further explained in an American textbook of law which states "The theory of the English system of law was, that all judicial authority vested in the king; but the inconvenience of its practical application led to its being delegated to the courts of common law, to be there exercised according to certain fixed forms and settled principles. The insufficiency of these courts to do exact justice, especially in cases where, to use the language of King Henry IV (Royal Parliament 266) `one party was so great and rich, and the other so poor that he could not otherwise have remedy.' Led frequently to petitions seeking the direct interposition of king or parliament, by whom the petitioners were naturally referred to the Lord Chancellor, as the keeper of the great seal." Another American legal work explains on page 15 that "The great inconvenience to suitors resulting from this transitory quality of the court was remedied by Magna Charta, which provided in one of its articles that `Common pleas shall no longer follow the King.' In obedience to this mandate of the Charter, justices were appointed to hear controversies concerning lands, and other matters purely civil, known as `common' pleas." This was in contrast to the "Curia Regis" or King's Court.
The history of the King's Council has a long tradition in English jurisprudence. For example on page 35 of Pomeroy's work mentioned above "Under the early Norman kings, the Crown was aided by a Council of Barons and high ecclesiastics, which consisted of two branches, the General Council, which was occasionally called together, and was the historical predecessor of the parliament, and a Special Council, very much smaller in number, which was in constant attendance upon the King, and was the original of the present Privy Council. It was composed of certain high officials, as the Chancellor, the Treasurer, the Chief Justiciary, and other members named by the king. This Special Council aided the Crown in the exercise of its prerogative, which as has been stated embraced a judicial function over matters that did not or could not come within the jurisdiction of the ordinary courts."
From this precedent came the body known as the Star Chamber. While the Crown had long ago delegated such mundane legal and judicial functions to justices, the Crown retained the right to exert its preeminence in any matter at any given time. This is specified in BRITTON, page 3 under the section on Authority Of Justices "We will that our jurisdiction be superior to all jurisdictions in our realm; so that in all kinds of felonies trespasses, and contracts, and in all manner of other actions personal or real, we have power to give, or cause to be given, such judgment as the case requires without any other process whenever we have certain knowledge of the truth , as judge."
It seems quite clear then that the king had not only the authority, but the right to exercise law and justice in his realm. This fact is so clear that it should not need to be made; however, some modern day historians so disdainful of the Royal Prerogative have attempted to obscure this point and conclude that the king was outside his jurisdiction in the application of law with respect to the use of torture before the Commonwealth. For further instruction the reader may well benefit by reading History, English Law, And The Renaissance by The Past & Present Society, Oxford University Press, Vol. 65, 1974.
Now that the authority of the Crown has been established by virtue of right, tradition, law and history, we need to examine the administration of penalties inflicted upon suspects, namely the application of torture in various forms, to various crimes specified by law. Firstly, it is important to note that what is commonly deemed "torture" was not only used in the examination of suspects with relation to certain crimes, but also in the punishment for certain offenses. This even applies to laws of pre-Revolutionary colonial America where the stocks were prescribed for various offenses. In BRITTON, page 40 some of the punishments for treason are prescribed variously as death, drawn and quarter, loss of limb, pillory or imprisonment or other penalty.
One of the most learned critics of the use of torture in English History was David Jardine, Esquire . Dr. Jardine's opposition and criticisms of the use of torture in pre-modern Great Britain are still a standard today.
His objections primarily stem from the fact that the common law of England as well as the Magna Charta did not prescribe torture, and the practice was inhumane and barbarous, and after a fashion illegal. However, he admits that under the criminal penal code, by historical tradition, as well as by laws of royal prerogative, the practice was justified and lawful. Many later historians and critics fail to take notice of the latter, and misinterpret the direct injunctions against the application of torture in the post-Commonwealth era as if such were in vogue in the Pre- Commonwealth epoch.
His comments are worth summarizing herein. Firstly, the historicity of the practice of torture. On page 6 he states "Fortescue, who was successively Lord Chief Justice and Lord Chancellor of England in the reign of Henry VI, mentions in terms of reprobation and horror, an instance of false accusation (page 7) However, "He does not attempt to deny that in his time the practice was common in England." This reference to torture is from the early to mid 1400's. In fact, warrants exist for torture in virtually unbroken succession up to the time of Charles I being issued by almost every monarch prior to Charles I which would include Elizabeth I as well as other notable and popular sovereigns.
Also on page 7 "Sir Edward Coke in the 3rd Institute, p. 35 proceeds as follows: `Sir John Fortescue, Chief Justice Of England, wrote Before the civil law all tortures and torments of parties accused were directly against the common laws of England so there is no law to warrant tortures in this land." Coke is also noted to assert in the 4th Institute that torture is against the Magna Charta as cited by Jardine. Interestingly however, Jardine includes in the appendix royal warrants for torture, and in at least one of them Coke is present and involved in proceedings which warrant torture (p. 107, February 19, 1619-20, extract from Council Book, "This shall likewise to authorize you, or any two of you, whereof yourself to be one, to examine the said Peacock from time to time, and to put him, as there shall be cause for the better manifestation of the truth, to the torture either of the manacles or the rack. For which this shall be your warrant" Moreover, Lady Antonia Fraser in her book Faith And Treason - The Story Of The Gunpowder Plot, Doubleday, 1996, p.176 cites Coke's reference in the Third Institute relative to "There is no law to warrant tortures in this land." She also notes that "What Coke blandly ignored, in his emphasis on the rule of law, was that the use of torture, supported by the royal prerogative, had actually been on the increase in England under the Tudors."
On page 10-11 of Jardine's work, in the case of John Felton's assassination of the Duke of Buckingham, George Villiers, the judges were consulted by Charles I with respect to the application of torture to examine him to inquire if there was a plot and/or accomplices to the crime. Felton was asked by the judges if there were co-conspirators, and if he would not answer such questions he would go to the rack. Felton denied that there were any conspirators, and confessed he acted alone. Felton threatened that if he were subjected to torture that he might implicate any of the judges present, possibly even Bishop Laud. The judges asked no further questions, and resultantly and quite expectedly returned their unanimous opinion to Charles I against the legality of torture.
Their fear of implication in the matter via the threat from Felton is very real indeed for precedent exists in which the accusations of one under torture brought death to the accused. Also on page 7 of Jardine's work it is noted "Sir Thomas Coke, Lord Mayor of London, was tried for high treason, and convicted of misprision of treason, upon the single testimony of one Hawkins, elicited by torture; and that Hawkins himself was convicted of treason upon his own confession on the rack and executed." It is highly probable that the verdict of the judges as to the legality of torture in this case was influenced by Felton's threat to implicate them should he be tortured though Jardine does not make this connection.
Page 13 "it is an historical fact, that anterior to the Commonwealth, torture was always used as a matter of course in all grave accusations, at the mere discretion of the King and the Privy Council, and uncontrolled by any law besides the prerogative of the Sovereign."
Page 59 "They (the precedents for torture) seem to me to show, not the casual, capricious, or unjust acts of particular kings or councilors, but a practice handed down and justified by a consistent course of precedents as an unquestionable prerogative of the Crown, though directly opposed to the fundamental principles of reason and law (common law); contrary to the Magna Charta but it was lawful as an act of prerogativeWhen such writers as Fortescue, Coke and Smith denounce (page 60) the use of torture as illegal, they must be considered as speaking of it with reference to the common law of England but they would probably have admitted, that the use of the rack was lawful and justifiable by the English Constitution if warranted by the Special Command of the King." Consequently, the judges consulted in Felton's case no doubt knew of this distinction, thus their reference to the common law, and not to the law of royal prerogative. Interestingly on page 60 Jardine notes that many of the judges who joined in the resolution against the legality of torture in Felton's case " before they were raised to the bench, were not unfrequently employed in examinations by the rack."
Page 61 it is noted that Charles I received a legal treatise entitled "Notes On The Examination Of Felton" which concluded "Upon consideration of the effect of these examinations Your Majesty may give further directions, if such presumptions and indicia tortuae shall appear as it may be fit" Thus, torture was allowable under certain conditions. This can be seen historically that in any honest review of Council Books for virtually any reign there will be found many warrants for the application of torture.
One last point. Some critics have alleged that James in his warrant for torture as in the case of Guy Fawkes who was guilty of high treason, was in violation of English law for issuing a warrant for torture. This is clearly untenable because as we have seen the King was within his right to prescribe this method of examination by law, tradition, and right of his office. Furthermore, James did not issue his warrant for torture for conspirators under the provisions of Common Law, but rather under the guidelines of Royal Prerogative via the Privy Council, Star Chamber and criminal law.
In the Calendar of State Papers, Domestic Series, In The Reign Of James I, 1603-1610, HMSO, page 298 with respect to the Gunpowder Plot, conspirators, according to Salisbury (Cecil), " the King will have the three Lords tried in the Star Chamber, not by common law." This was the norm rather than the exception.
Consequently, James was not in violation of any law of England in his use of torture. The power of his office as established by law, tradition, and history empowered him so to do, and the laws of prerogative further supported his actions, as well as by virtue of the fact that the use of torture was a well established custom of the realm well before James ascended to the throne.
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© 1997 Stephen A. Coston, Sr. All rights reserved . No part of this shall be reproduced, stored in a retrieval system, or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission from the Author and Publisher. KonigsWort Inc. 7245 34th Ave. N. St. Petersburg, FL. 33710
Note: More questions about this great King? Let's get the facts straight! We highly suggest, "King James, Unjustly Accused?" by Stephen A. Coston, Sr. You can get it from A.V. Publications Corp., P.O. Box 280, Ararat, VA 24053, 1-800-435-4535 OR call 1-800-659-1478. You can write Mr. Coston at 7245 34th Ave. N. St. Petersburg, FL 33710.
To learn more about King James VI & I check out:
His Majesty King James VI & I Page
| Eternal Life | Hell is Real | The Gospel According to John | | My Testimony |Why I Read the Authorized KJV Bible| | The Hymnal | Messianic Prophecies Fulfilled by Jesus Christ | | Epistle Dedicatory to the Authorized King James of 1611 |
Jesus Christ is the Only Way to God / Internet Bible Church / email@example.com / created Sept 1996
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