On torture

Comment

1. We have seen that the use of torture, though illegal by the common law, was justified by virtue of the extraordinary power of the crown which could, in times of emergency, override the common law. We shall see that Coke in the earlier part of his career admitted the existence of this extraordinary power. He therefore saw no objection to the use of torture thus authorized. But we shall see that his views as to the existence of this extraordinary power
   changed, when the constitutional controversies of the
   seventeenth century had made it clear that the existence of any extraordinary power in the crown was incompatible
   with the liberty of the subject. It is not surprising
   therefore, that, in his later works, he states broadly that all torture is illegal. It always had been illegal by the
   common law, and the authority under which it had been
   supposed to be legalized he now denied. When we
   consider the revolting brutality of the continental criminal
   procedure, when we remember that this brutality was
   sometimes practised in England by the authority of the
   extraordinary power of the crown, we cannot but agree
   that this single result of the rejection of any authority other than that of the common law is almost the most valuable of the many consequences of that rejection. Torture was not indeed practised so systematically in England as on the continent; but the fact that it was possible to have recourse to it, the fact that the most powerful court in the land sanctioned it, was bound sooner or later to have a demoralising effect upon all those who had prisoners in their power. Once torture has become acclimatized in a legal system it spreads like an infectious disease. It saves the labour of investigation. It hardens and brutalizes those who have become accustomed to use it.

   Sir William Holdsworth, A History of
   English Law, vol 5, 3rd ed (1945), pp 194-195

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