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Propositions found in Felton’s trunk, at the time he slew the duke.

“1. There is no alliance nearer to any one than his country.

“Except his God and his own soul, said the divines.

“2. The safety of the people is the chiefest law.

“Next to the law of God, said these divines.

“3. No law is more sacred than the safety and welfare of the commonwealth.

“Only God’s law is more sacred, said the divines.

“4. God himself hath enacted this law, that all things that are for the good profit and benefit of the commonwealth should be lawful.

“The divines said, We must not do evil that good may come thereon.”

The gradual rise in these extraordinary propositions, with the last sweeping one, which includes everything lawless as lawful for the common weal, was at least but feebly parried by the temperate divines, who, while they were so reasonably referring everything to God, wanted the vulgar curiosity to inquire, or the philosophical discernment to discover, that Felton’s imagination was driving everything at the duke. Could they imagine that these were but subtle cobwebs, spun by a closet speculation on human affairs? In those troubled times did they not give a thought to the real object of these inquiries? or did they not care what befel a minion of the state?

There is one bright passage in the history of this unhappy man, who, when broken down in spirits, firmly asserted the rights of a Briton; and even the name of John Felton may fill a date in the annals of our constitutional freedom.

Felton was menaced with torture. Rushworth has noticed the fact, and given some imperfect notes of his speech, when threatened to be racked; but the following is not only more ample, but more important in its essential particulars. When Lord Dorset told him (says the MS. letter) “Mr. Felton, it is the king’s pleasure that you should be put to the torture, to make you confess your accomplices, and therefore prepare yourself for the rack:”–Felton answered, “My lord, I do not believe that it is the king’s pleasure, for he is a just and a gracious prince, and will not have his subjects tortured against law. I do affirm upon my salvation that my purpose was not known to any man living; but if it be his majesty’s pleasure, I am ready to suffer whatever his majesty will have inflicted upon me. Yet this I must tell you, by the way, that if I be put upon the rack, I will accuse you, my lord of Dorset, and none but yourself.”[254] This firm and sensible speech silenced them. A council was held; the judges were consulted; and on this occasion they came to a very unexpected decision, that “Felton ought not to be tortured by the rack, for no such punishment is known or allowed by our law.” Thus the judges condemned what the government had constantly practised. Blackstone yields a fraternal eulogium to the honour of the judges on this occasion; but Hume more philosophically discovers the cause of this sudden tenderness. “So much more exact reasoners, with regard to law, had they become from the jealous scruples of the House of Commons.” An argument which may be strengthened from cases which are unknown to the writers of our history. Not two years before the present one, a Captain Brodeman, one who had distinguished himself among the “bold speakers” concerning the king and the duke, had been sent to the Tower, and was reported to have expired on the rack; the death seems doubtful, but the fact of his having been racked is repeated in the MS. letters of the times. The rack has been more frequently used as a state engine than has reached the knowledge of our historians: secret have been the deadly embraces of the Duke of Exeter’s daughter.[255] It was only by an original journal of the transactions in the Tower that Burnet discovered the racking of Anne Askew, a narrative of horror! James the First incidentally mentions in his account of the powder-plot that this rack was shown to Guy Fawkes during his examination; and yet under this prince, mild as his temper was, it had been used in a terrific manner.[256] Elizabeth but too frequently employed this engine of arbitrary power; once she had all the servants of the Duke of Norfolk tortured. I have seen in a MS. of the times heads of charges made against some members of the House of Commons in Elizabeth’s reign, among which is one for having written against torturing! Yet Coke, the most eminent of our lawyers, extols the mercy of Elizabeth in the trials of Essex and Southampton, because she had not used torture against their accomplices or witnesses. Was it for the head of law itself, as Coke was, to extol the mercy of the sovereign for not violating the laws, for not punishing the subject by an illegal act? The truth is, lawyers are rarely philosophers; the history of the heart, read only in statutes and law cases, presents the worst side of human nature: they are apt to consider men as wild beasts; and they have never spoken with any great abhorrence of what they so erroneously considered a means of obtaining confession. Long after these times, Sir George Mackenzie, a great lawyer in the reign of James the Second, used torture in Scotland. We have seen how the manly spirit of Felton, and the scruples of the Commons, wrenched the hidden law from judges who had hitherto been too silent; and produced that unexpected avowal, which condemned all their former practices. But it was reserved for better times, when philosophy combining with law, enabled the genius of Blackstone to quote with admiration the exquisite ridicule of torture by Beccaria.