Thomas Le Marchant on torture
6th January 2016
In Guernsey the authorities could, if they wished, make use of the jehennet, or 'Jenny,' better known as ... the rack. It appears, however, that they preferred strappado. The illustration is from Fox's Book of Martyrs, revised John Malham: London, Thomas Kelly, 1814, in the Library Collection.
In 1583 a Commission headed by Guernsey's Governor, Sir Thomas Leighton, working at the behest of Queen Elizabeth I, published the results of a lengthy deliberation and analysis of the law of Guernsey. The intention was to examine the relationship of current legal usage in the island with the Norman Coutumier, on which it was based; to list those chapters that were used in the island in their entirety, and then to detail any occasion on which the island law diverged in usage from the Norman. They used as their point of reference, however, not the Coutumier itself, but Norman law in the version outlined by the French commentator Terrien just ten years earlier, in 1574. They attempted thus to codify Guernsey law. Later referred to as the Approuveurs, or Compilateurs, their report was known as the Approbation [des Loix.] It was descriptive of the law, but it was also intended to be prescriptive, in that it was implied that the law of Guernsey as described in the Approbation was the law as it should be followed; it was the Privy Council themselves who eventually 'ratified and approved the laws therein contained,' in 1584, even though there were doubts about the validity of using Terrien's commentary as the basis for the report.¹
One hundred years later or so, in the second half of the 17th century (c 1650), Reverend Thomas Le Marchant, an outspoken man of principle, found plenty to disagree with, and wrote a very lengthy examination and rebuttal of the Commission's conclusions, which he found not only confusing but quite often plain wrong. He attributed this to the arrogance of the Compilers, who, he claimed, did not conduct a wide-ranging or thorough enough inquiry amongst the islanders, relying instead on their own opinion and knowledge, or lack of it, as he saw it (although they had, to be fair to them, simply followed instructions from the Crown). The Approbation was not made available in published form until 1715, when wealthy sea-captain Thomas Tramailler took it upon himself to publish it because 'poor islanders had been unable to have access to it.' Le Marchant's critique was published eventually, in 1826, as Remarques et animadversions sur l'Approbation des Lois et Coustumier de Normandie usitées ès jurisdictions de Guernezé, et particulièrement en la Cour royale de la ditte isle.
Thomas Le Marchant was not a man of quiet acceptance. He rebelled against the Act of Uniformity in 1662 and was shut up first in Castle Cornet in 1663, and in 1665 in the Tower of London, until September, 1667, when he was liberated 'on £1000 bail on condition he never dare set foot in Guernsey again without special permission from the King, and that he behaves in future like a respectful and loyal subject.'
The Reverend Thomas Le Marchant had been ordained and presented to the livings of St Sampson and the Vale under the Protectorate, and it being therefore requisite at the Restoration that he be reordained, in order to retain his preferment, he could not brook the idea of acknowledging his ordination to be invalid, and indignantly resigned his livings. [...] This excellent man, after taking his degrees at Cambridge, spent some years at the academy at Caen, where he enjoyed the friendship of the learned Bochart and Huet. They corresponded with him on his return to Guernsey, and many of these letters were preserved until a fire at Grand'maisons. [Le Marchant, D, Memoirs of the late General Le Marchant, London: Samuel Bentley, 1841, pp. 29-30.]
The preface to the Remarques, which was published by the Royal Court with the permission of his great-great-grand-nephew, Eléazar Le Marchant, refers to loss of the letters and Thomas' own writings in 'the fire at Grand'Maisons, in 1713.'
Even the title page of the Approbation exercised him: he condemned the casual approach of the Commissioners.
It is claimed that this Report lists 'the laws, customary laws, and usages which differ from those of Normandy.' A reasonable person would assume, therefore, that the Compilers of this Approbation only note those points of law in which Guernsey usage differs from the Norman Coustumier, and would reasonably infer that anything they pass over without mention reflects usage in the island. However, one will soon come to realize upon reading further that by missing out whole chapters, making the most fleeting of references to others, and when dealing with yet others giving an ambiguous answer, and thus leaving islanders to do as they will in their regard, they have left the island authorities unable to make decisions one way or another. When the Approuveurs talk of a point of law, we use it; the remainder that we don't use, they don't deal with at all, or leave it to the individual to make up his own mind.
The 1826 publication of the Remarques followed four years after the republication of the Approbation in 1822, both volumes being under the Guernsey imprint of Dumaresq and Mauger; it was published, 'not necessarily to agree with the author's assertions,' but 'to give islanders the opportunity to learn more about local customary law, and the changes that it has undergone through different periods of history,' changes mostly brought about, wrote the editors, by people with insufficient intelligence or judgment properly to understand what they were doing.
Torture
Torture was allowed for in Guernsey from the earliest times, as the maintenance of the equipment and official documentation of torture sessions were part of the paid duties of the Porter of Castle Cornet. The only officially-sanctioned torture that is known to have taken place, however (thuggish beatings of people you don't like notwithstanding), is that of those condemned to death for sorcery, and which was, in Thomas Le Marchant's opinion—forcefully expressed below—not only wicked but illegal. This took place at the Tour Beauregard, which accords with his assertion that torture (in the form of strappado) was inflicted on the condemned just before their execution, rather than at the Castle, where they were imprisoned. In 1617 poor Colette Dumont was found guilty of 'the damnable art of sorcery' and was taken straight from the Courthouse to be tortured, this forming part of her sentence, in order to force her to name her accomplices.²
Chapters 11 and 12: In a case of capital punishment, we do not have recourse to any sort of torture, other than to hang and/or burn (depending upon what is warranted in each case).
Observation 1. It is true that in this island we are not in the habit of breaking thieves or highwaymen or footpads on the wheel; but in addition to the punishment of death itself we in this island do sometimes deny these type of criminals a burial, and hang the bodies in chains at the side of the road where the crime was committed until the bodies fall apart, to put fear [terreur] in the hearts of, and set an example to, anybody contemplating this type of crime.
Approbation: Chapter 38 (37 in Terrien.) (They report and approve) we use the said 37th Chapter.
Observation 1. Article 1 and its accompanying note say that torture may be used when, in a criminal trial, although there are witnesses to offer proof, the matter is neither clear nor definitive enough to rely on it to inflict capital punishment or the loss of a limb upon the accused; although there are, after all, other very powerful reasons for suspicion other than evidence that can lead one to find a criminal guilty, he cannot yet be set free without first the use of the ultimate and most extreme methods in order to uncover the truth by his own admission, if possible, whether given willingly or by force. This applies particularly in cases where the accused continues to protest his innocence, although witnesses have provided sufficent proof to convict, especially since by customary law the sentence of the death penalty or the loss of a limb may not be inflicted on anyone upon the evidence of witnesses only; the accused must also confess the crime from his own mouth; unless, the evidence aside, the crime is so incontestable that there can be no means of denying it or hiding it, even if the criminal persist in denying it; for in such a case, there is no option but to condemn the accused straight away, even if it is to the death penalty. Torture is also sometimes used, in addition to the proof and sufficient evidence for the accused to be found guilty of the main fact, to discover and find out about some particular circumstance that has bearing on the accused or his accomplices, which it is expedient for the Judges to know for some other consideration than the straightforward condemnation.
2. Following the said Articles and notes, the Judges are obliged, before condemning the accused to torture, to consult and deliberate (in their usual meeting place for this purpose) with persons of note, who are educated, and not suspected currently or in the past of favouring, helping or advising one or other of the parties. If after this consultation they decide that torture should be used, the sentence must be pronounced upon the prisoner and executed the same day or the next day at the latest (and not kept secret), unless the sentence is appealed. The criminal must make his appeal before he is set up to be tortured, and the torture begun, otherwise he is not allowed to have it stopped. Now, on this point, (as we have touched on elsewhere), the Approbation is at serious fault, for to whom is he to appeal the sentence of torture? Would it be to the same Judges who have found him guilty? Not only would this be illogical and unreasonable, however, but there is no-one else in the Island to whom he can appeal. Would it be to the King and Council? But since the King no longer sends his Judges of Assize to the Island, the Court here has assumed the power to judge criminal cases without appeal; and the Approbation when dealing with the 36th Chapter says that all such crimes committed in the Island are to be tried in the Island, and if one cannot appeal the primary sentence, such as when someone is condemned to death, how can anyone appeal a sentence of torture, which could be termed provisional? There was then an obvious contradiction when the Commission accepted this whole Chapter as conforming to the customary law of the Island, compared to what they set down elsewhere, and what they generally practice in matters of appeal. And indeed, if one considers the practices of the said Court carefully, it will be found that despite what it says in the Approbation, this Chapter is not customarily used in the Island. Our Judges never sentence anyone to torture to extract more information or evidence before finding them guilty. For when it comes to the torture to which they subjected those poor supposed witches, after they had condemned them to death and passed their sentence, just before they executed them, that is a matter upon which neither the Coustumier nor any good legal authority makes any pronouncement whatsoever, and it is indeed a very different kind of thing to the type of torture as approved in this book, and completely opposed to common sense and common humanity; it is nothing but barbarity, pure and simple, to take up the time left to these poor wretches for repentance and prayer to God and for them to implore his mercy, so that they might reconcile themselves to him and prepare for death, and [instead] to prevent them from contemplating God and their conscience by busying oneself with cruelly tormenting them and dislocating their limbs (and even pulling them right off), most likely plunging them into the depths of despair, and thus to cause them to lose their spiritual as well as their physical life, an abuse I have already touched on in my Observation 14 on the First Book.
3. Following the provisions of Article 2 and the notes, [Terrien p. 527], the Greffier must be present when a sentence of torture is handed down, and must write down the names of the people who are inflicting it, and the type, length and number of times it is inflicted, if it is inflicted, as well as the questions the sufferer is asked (which should be put to him on general terms concerning the crime of which he is accused), and his answers, how long he stands up to it, how long he maintains his answers, or any variation in them. If he makes any confession he must be interrogated again the following day to see if he still maintains the confession made under torture; and if he then denies what he previously confessed, he should be asked the question again, and once more if necessary. If he perseveres throughout this questioning in his denial, and if besides there are no definitive proofs that confirm his first confession, he must be freed, but if there are any proofs that emerged at the trial, his recanting of his confession shall not be admissible. On the day a prisoner is to be tortured he may be given no food nor drink before he is put to the torture.
Anyway, it is quite right that the Coustumier attempts to moderate the harshness of torture, in Articles 3 and 4 and the commentary, because, although the quality of a person should not exempt them from torture any more than from any other punishment, if they have committed a crime that warrants it, nevertheless, free and honest men of a good reputation ought not to be tortured without serious reasons for suspicion and the evidence of at least one witness, and the severity of the torture should be reduced, so that it does not result in loss of life or limb. If a Judge goes too far he must answer for it, and the torture must not be repeated. The accused may only be tortured again if there is some new reason to believe that further evidence will result from it, or that he may reveal the names of any accomplices, if it is indisputable that he had them. But, even after all these modifications I have listed, I can yet agree with the commentary, that torture is a very cruel, dangerous, dubious, and uncertain method of reaching the truth, wherein the guilty who have the courage can lie to cover themselves, and innocent people who are not so tough-minded, lie and end up condemning themselves. And, to be perfectly truthful, there is no other chapter and judicial procedure in this whole book so little founded in natural justice and divine law as this one; for torture seems more likely to be an invention of the Devil than of man, because it takes a punishment from hell and enables it on earth, that is, to remain in torment but not to die, as if death itself was not punishment enough for such miserable delinquents. And if Torture was indeed invented by men, it is undeniable that these people must have been of a cruel and barbarous mentality, who, by doing this, themselves deserve the punishment of Perilus, because plainly there are enough other ways to get to the truth about a crime, and it is more just that three guilty people go unpunished, than for one innocent person to be subjected to such awful torments undeservedly. Human life is wretched enough, without men spending their time working out how they can best rack each other. This is why I feel justified in saying that I would have praised the authorities of this Island for not making use of this Chapter, even though it was included in the Approbation, if they had not made entirely their own decision to introduce another sort of torture, less justifiable and as much or even more cruel, and which they use on people whom they have already condemned to death, as I discussed above, and since they brought this in without the authority of either God or King, they should think very carefully about how they can answer for it.
¹ 'The commentary on Terrien's Commentaires and this approval by the Privy Council together form that statement of Guernsey law known as the Approbation des Loix.' A very clear and detailed account of the genesis and compilation of the Approbation des Loix can be found in Ogier, D, The Government and Law of Guernsey, 2nd Ed., Guernsey: States of Guernsey, pp. 160-167.
² See 'Warburton,' Treatise on the History, Laws, and Customs &c, 1682, p. 126, which describes strappado rather than racking; and MacCulloch's Guernsey Folk Lore, p. 325, with Editor's note.
See also Thomas Le Marchant's thoughts on suicides.