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June 17, 2007

 Royal torture

In 1597 the Jesuit priest John Gerard lay in the Tower of London on suspicion of treason. He had received suspicious letters from the Low Countries, supposedly from Spain. A royal warrant, approved by the Privy Council, was sent to the Tower for his interrogation.

It reads:

... if you shall find him obstinate, undutiful, or unwilling to declare and reveal the truth as he ought to do by his duty and allegiance, you shall by virtue hereof cause him to be put to the manacles and such other torture as is used in that place, that he may be forced to utter directly and truly his uttermost knowledge in all these things that may any way concern her Majesty and the State and are meet to be known.
(From an NYRB review article, Shakespeare and the Uses of Power, by Stephen Greenblatt, citing a 1977 book by the Yale law professor John Langbein, Torture and the Law of Proof.)

There were 53 documented cases of legal torture during the 45-year reign of Elizabeth I. (Greenblatt, citing John Guy, Tudor England)

There are obvious parallels here to the institutionalized torture of terrorist suspects by the Bush administration:

  • Torture was illegal under the common law; its basis was a legally insecure - though longstanding - claim of royal privilege.
  • Against a background of religious conflict, there was a real and specific threat from a non-state actor: the Papacy, which in 1570 had declared Elizabeth a bastard usurper and relieved English Catholics from their allegiance to her. Some though not all of the Jesuit missionaries were involved in violent conspiracies, from the Babington plot in 1586 to the Gunpowder plot after Elizabeth's death. The real threat was magnified into a popular paranoia directed at all Catholics, seen as fifth columnists, and especially priests, seen as spies. This paranoia outlived the death of Elizabeth and the succession of James I//VI, who though Protestant was undoubtedly legitimate, and is still a force in Northern Ireland.

What I find interesting are the differences, which go beyond the general evolution of sensibility and law:

  • The Elizabethan warrant is unambiguous; there is no self-deception, and the Queen and Privy Council assume full moral and legal responsibility.
  • The warrant is for a single case and occasion and for a named person; there is no general delegation, even late into the conflict. The numbers tortured per year were far lower than Bush's.
  • Once the Papacy had been overtly joined in the conflict by the superpower Spain in 1585, the danger to Protestant England was enormous and existential, as later with Nazi Germany. Al Qaeda is a murderous and fanatical enemy, but like the IRA or a serial killer it cannot threaten the foundations of the state except by a self-destructive overreaction.

The clarity of the warrant reflects the fact that Elizabeth and her counsellors - Burghley, Walsingham, Bacon - were as ruthless as the Bush court but, unlike them, clear-sighted and calculating: compare the results of their policies. There's also I think a particular reason for the formality of the procedure. Elizabeth was childless and her counsellors had to cover themselves against reprisals by her successor - after all, Babington was tortured and executed for trying to put James' mother Mary on the throne. So they needed her thumbprint on controversial acts like torture warrants. For the same reason she had to prevent their jumping ship while she lived: so she needed their thumbprints too.

I'd like to report that Elizabeth's parliaments were more vigilant that the US Congress in reining in claims of royal privilege. They were, but not over torture: the knights of the shires couldn't care less what happened to a bunch of alien terrorists. But they did join battle over taxation; and and in alliance with common lawyers like Coke, their struggle led to the Petition of Right, the Civil War, and the whole Anglo-American tradition of constitutional government. Which the President, with little opposition from the Congress and judiciary, has been reversing, in his mad-scientist time machine, towards the Tudor Star Chamber.

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