146 THE END OF THE STRUGGLE The judges therefore, after satisfying themselves by independent proof of the guilt of the accused, had to obtain his confession; without torture if possible, by torture if not. But the Dutch ordinances of 1570 pro- vided safeguards against the abuse of this method, and insisted on indicia sufficientia ad torturatn, or a reason- able presumption of guilt before the torture was re- sorted to. In England torture, although unrecognized by the common law, was employed in state trials by the Privy Council or High Commission Court in virtue of the royal prerogative. " The rack seldom stood idle in the Tower," writes Hallam, " for all the latter part of Elizabeth's reign.' ' Lord Burleigh defended its use, as the accused " was never so racked but that he was perfectly able to walk and to write; " and " the ward- ers, whose office and act it is to handle the rack, were ever by those that attended the examinations specially charged to use it in so charitable a manner as such a thing might be." "In the highest cases of treason," wrote Lord Bacon in 1603, " torture is used for dis- covery and not for evidence." James I had perhaps less right than any other Eng- lish sovereign to complain of its use by the Dutch. As King of Scotland he had not only sanctioned torture in alleged cases of conspiracy and witchcraft, but had in 1596 authorized even a subordinate court— the pro- vost and baillies of Edinburgh— to try rioters by tor- ture. As King of England he had in 1605 racked Guy Fawkes, per gradus ad ima, and in 1615 the aged Puri-
