LEGALITY OF THE USE OF TORTURE 147 tan Peacham had been examined " in torture, between tortures, and after torture.' ' In the same year O'Ken- nan was put to the rack in Dublin by commission of the king's deputy. In each one of his three kingdoms James had used torture, and he defended it with his " own princely pen." Even such details as the Dutch complaint that John Clarke must be " a devil " or " a witch," because he stubbornly refused to confess under torment, are repro- duced in the English trials. On January 21, 1615, Lord Bacon condoled with his Majesty on the obstinacy of the mangled Peacham, " whose raging devil seems to be turned into a dumb devil." Lord Burleigh's defence of the rack on the ground that it was mercifully admin- istered and that the sufferer was always " able to walk and to write " afterwards, is an exact anticipation of the Amboyna judge's plea of the " civil " character of the water-torture. Yet if history must allow that the Dutch had juris- diction, and that under that jurisdiction the use of torture was lawful, it must also declare that a grievous miscarriage of justice had taken place. It is admitted that the record discloses grave irregularities in pro- cedure—irregularities so serious that if an appeal had been allowed they might have sufficed to quash the trial. How far they were due to the careless character of the record itself will ever remain undecided. There was certainly an absence of the indicia sufficientia ad torturam, or reasonable presumption of guilt, which would have justified torture under the Dutch law. The
