Mrs. Grant and Mr. Paul. Soon afterwards, however, he received another
letter from a Rev. Mr. Bennett, setting forth a deplorable tale of
misery; but his suspicions being awakened, he employed his steward to
trace the supposed Rev. Mr. Bennett, when it turned out to be the
prisoner at the bar, who had imposed himself on his lordship as the Rev.
Mr. Paul, that "best of men," whom Mrs. Grant stated to have "died
suddenly." His lodgings being searched, a book was found in his own
handwriting, giving an account of money received, (by which it appeared
that he had plundered the public to the amount of four hundred and
eighty-eight pounds within two years,) with a list of the donors' names,
among whom were, the Duchess of Beaufort, Lord Willoughby de Broke, Lord
Lyttleton, Lady Howard, Lady Mary Duncan, Bishops of London, Salisbury,
and Durham, Earls of Kingston and Radnor, Lord C. Spencer, Hon. Mrs.
Fox, &c. &c.
Other memoranda were also found, which showed that the prisoner had
reduced his mode of proceeding to a perfect system, notes being taken of
the style of handwriting which he assumed, under his different names,
and of the description of sealing-wax, wafer, and paper, used in his
letters.
The jury found the prisoner guilty, and the Court immediately sentenced
him to seven years' transportation. He was sent to Botany Bay in April
1805.
Frequent convictions of a similar character have taken place, but it is
to be hoped, that if the exertions of the police have not been fully
successful in putting a stop to the system, the public, at least, have
been so far put upon their guard, as that they will not submit to be
duped, but that they will first inquire into and ascertain the real
claims of the applicants before they extend their charity to them.
THOMAS PICTON, ESQ.
INDICTED FOR APPLYING THE TORTURE TO LOUISA CALDERON, TO EXTORT A
CONFESSION.
The cruelty of the application of the torture to extort confession,
cannot but be universally admitted in the present enlightened age. The
following remarks of the French philosopher Voltaire admirably
illustrate this feeling, and serve well to introduce the case of
Governor Picton:--
"All mankind being exposed to the attempts of violence and perfidy,"
says he, "detest the crimes of which they may possibly be the victims;
all desire that the principal offender and his accomplices may be
punished; nevertheless, there is a natural compassion in the human
heart, which makes all men detest the cruelty of torturing the accused
into confession. The law has not condemned them; and yet, though
uncertain of the crime, you inflict a punishment more horrible than that
which they are to suffer when their guilt is confirmed. 'Possibly thou
mayest be innocent; but I will torture thee that I may be satisfied; not
that I intend to make thee any recompense for the thousand deaths which
I have made thee suffer in lieu of that which is preparing for thee.'
Who does not shudder at the idea? St. Augustin opposed such cruelty. The
Romans tortured their slaves only; and Quintilian, recollecting that
they were men, reproved the Romans for such want of humanity."
The defendant, Thomas Picton, Esq. was indicted for putting to the
torture a female, Louisa Calderon, one of his majesty's subjects in the
island of Trinidad in the West Indies, in order to extort confession.
Mr. Garrow stated the case for the prosecution; and, whilst he expressed
the strongest desire to bring to condign punishment the perpetrator of
an offence so flagrant as that charged upon the defendant, yet much more
happy would he be to find that there was no ground upon which the charge
could be supported, and that the British character was not stained by
the adoption of so cruel a measure. The island of Trinidad, he said,
surrendered to Sir Ralph Abercrombie in the year 1797; and he entered
into a stipulation, by which he conceded to the inhabitants the
continuance of their laws, and appointed a new governor, until his
majesty's pleasure should be known, or, in other words, until the king
should extend to this new acquisition to his empire all the sacred
privileges of the laws of England. He had the authority of the defendant
himself for stating, that the system of jurisprudence adopted under the
Spanish monarch, for his colonial establishments, was benignant, and
adapted to the protection of the subject, previous to the surrender of
this island to the British arms.
In December 1801, when this crime was perpetrated, Louisa Calderon was
of the tender age of ten or eleven years. At that early period she had
been induced to live with a person named Pedro Ruiz, as his mistress;
and although it appeared to them very singular that she should sustain
such a situation at that time of life, yet it was a fact, that in that
climate, women often became mothers at twelve years old, and were in a
state of concubinage, if, from their condition, they could not form a
more honourable connexion. While she lived with Ruiz, she was engaged in
an intrigue with Carlos Gonzalez, the pretended friend of the former,
who robbed him of a quantity of dollars. Gonzalez was apprehended, and
she also, as some suspicion fell upon her, in consequence of the affair,
was taken into custody. She was taken before the justice, and, in his
presence, she denied having any concern in the business. The magistrate
felt that his powers were at an end; and whether the object of her
denial were to protect herself, or her friend, was not material. The
extent of his authority being thus limited, the officer of justice
resorted to General Picton; and he had now to produce, in the
handwriting of the defendant, this bloody sentence:--"Inflict the
torture upon Louisa Calderon." There was no delay in proceeding to its
execution. The girl was informed in the jail, that, if she did not
confess, she would be subjected to the torture; that under this process
she might probably lose her limbs or her life; but the calamity would be
on her own head, for, if she would confess, she would not be required to
endure it. While her mind was in the state of agitation this notice
produced, her fears were aggravated by the introduction of two or three
negresses into her prison, who were to suffer under the same experiment
for witchcraft, and as a means of extorting confession. In this
situation of alarm and horror, the young woman persisted in her
innocence: and a punishment was inflicted, improperly called picketing.
That was a military punishment, perfectly distinct in its nature. This
was not picketing, but the torture. It was true, the soldier, exposed to
this, did stand with his foot on a picket, or sharp piece of wood; but,
in mercy to him, a means of reposing was afforded, on the rotundus
major, or interior of the arm. Her position might be easily described.
The great toe was lodged upon a sharp piece of wood, while the opposite
wrist was suspended in a pulley, and the other hand and foot were lashed
together. Another time the horrid ceremony was repeated, with this
difference, that her feet were changed.
[The learned counsel here produced a drawing in water-colours, in which
the situation of the sufferer, and the magistrate, executioner, and
secretary, was described. He then proceeded]:--
"It appeared to him, that the case, on the part of the prosecution,
would be complete when these facts were established in evidence; but he
was to be told, that though the highest authority in this country could
not practise this on the humblest individual, yet that, by the laws of
Spain, it could be perpetrated in the island of Trinidad. He would
venture to assert, that if it were written in characters impossible to
be misunderstood, that if it were the acknowledged law of Trinidad, it
could be no justification of a British governor. Nothing could vindicate
such a person, but the law of imperious necessity, to which all must
submit. It was his duty to impress upon the minds of the people of that
colony, the great advantages they would derive from the benign influence
of British jurisprudence; and that in consequence of being received
within the pale of this government, torture would be for ever banished
from the island. It was not sufficient for him, therefore, to establish
this sort of apology; it was required of him to show, that he complied
with the institutions, under circumstances of irresistible necessity.
This governor ought to have been aware that the torture was not known in
England; and that it never would be, never could be tolerated in this
country.
"The trial by rack was utterly unknown to the law of England, though
once, when the Dukes of Exeter and Suffolk, and other ministers of Henry
VI. had laid a design to introduce the civil law into this kingdom, as
the rule of government, for a beginning thereof they erected a rack for
torture, which was called in derision the Duke of Exeter's daughter, and
still remained in the Tower of London, where it was occasionally used as
an engine of state, not of law, more than once in the reign of Queen
Elizabeth. But when, upon the assassination of Villiers, Duke of
Buckingham, by Felton, it was proposed in the Privy Council to put the
assassin to the rack, in order to discover his accomplices, the judges,
being consulted, declared unanimously, to their own honour, and the
honour of the English law, that no such proceeding was allowable by the
laws of England.
"Such was the effect of the observations of the elegant and learned
author of the Commentaries of the Law of England on this subject; and as
the strongest method of showing the horror of the practice, he gave this
question in the form of an arithmetical problem:--'The strength of the
muscles and the sensibility of the nerves being given, it was required
to know what degree of pain would be necessary to make any particular
individual confess his guilt.'
"But what were they to say to this man, who, so far from having found
torture in practice under the former governors, had attached to himself
all the infamy of having invented this instrument of cruelty? Like the
Duke of Exeter's Daughter, it never had existence until the defendant
cursed the island with its production. He had incontestible evidence to
show this ingenuity of tyranny in a British governor; and the moment he
produced the sanguinary order, the man was left absolutely without
defence. The date of this transaction was removed at some distance. It
was directed that a commission should conduct the affairs of the
government, and among the persons appointed to this important situation
was Colonel Fullarton. In the exercise of his duties in that situation,
he attained the knowledge of these facts; and with this information he
thought it incumbent on him to bring this defendant before the jury; and
with the defendant the victim of this enormity would also be produced."
Louisa Calderon was then called. She appeared about eighteen years of
age, of a very interesting countenance, being a Mulatto or Creole, and
of a very genteel appearance. She was dressed in white, with a turban of
white muslin, tied on in the custom of the country. Her person was
slender and graceful. She spoke English but very indifferently; and was
examined by Mr. Adam, through the medium of a Spanish interpreter.
She deposed that she resided in the island of Trinidad in the year 1798;
and lived in the house of Don Pedro Ruiz, and remembered the robbery.
She and her mother were taken up on suspicion, and brought before
Governor Picton, who committed them to prison, under the escort of three
soldiers. She was put into close confinement; and before she was taken
there the governor said, "If she did not confess who had stolen the
money, the hangman would have to deal with her."
She was afterwards carried to the room where the torture was prepared.
Her left hand was tied up to the ceiling by a rope, with a pulley; her
right hand was tied behind, so that her right foot and hand came in
contact, while the extremity of her left foot rested on the wooden
spike. A drawing representing the exact situation, with the negro
holding the rope by which she was suspended, was then shown to her; when
she gave a shudder, expressive of horror, which nothing but the most
painful recollection of her situation could have excited; on which Mr.
Garrow expressed his concern that his Lordship was not in a position to
witness this accidental, but conclusive, evidence of the fact.
The remainder of the witness's evidence corroborated the statement of
Mr. Garrow. She remained upon the spike three quarters of an hour, and
the next day twenty-two minutes. She swooned away each time before she
was taken down, and was then put into irons, called the "grillos," which
were long pieces of iron, with two rings for the feet, fastened to the
wall, and in this situation she remained during eight months. The effect
produced by the torture was excruciating pain; her wrists and ankles
were much swollen, and the former bore the marks of the barbarity
employed towards her to the present day.
Don Rafael Shandoz, an alguazil in the island, bore testimony to his
having seen the girl immediately after the application of the torture.
The apartment, in which she was afterwards confined, was like a garret,
with sloping sides, and the grillos were so placed that, by the lowness
of the room, she could by no means raise herself up, during the eight
months of her confinement. There was no advocate appointed to attend on
her behalf, and no surgeon to assist her. No one but a negro, belonging
to Ballot, the gaoler, to pull the rope. The witness had been four or
five
[Illustration: _The Torture._
_p. 426_]
years in the post of alguazil. He never knew the torture inflicted in
the island, until the arrival of the defendant. There had been before no
instrument for the purpose. The first he saw was in the barracks among
the soldiers. Before Louisa Calderon, the instrument had been introduced
into the gaol perhaps about six months. The first person he saw tortured
in Trinidad was by direction of the defendant, who said to the gaoler,
"Go and fetch the black man to the picket-guard, and put him to the
torture." After the eight months' confinement, both Carlos and Louisa
were discharged.
The order for the application of the torture, in the following
words--"Applicase la question a Louisa Calderon"--(Apply the torture to
Louisa Calderon)--was then proved to be in the handwriting of the
defendant; and the suggestion of the alcade Beggerat, before whom the
girl had been examined, that slight torture should be applied, was read.
Don Juan Montes then said that he had known the island of Trinidad since
the year 1793. That the torture was never introduced until after the
conquest of the island, and was then practised by order of the
defendant. It was first used with the military in 1799, and two years
afterwards in the gaol.
Mr. Dallas, for the defendant, rested his defence upon the following
statements:--
First,--By the law of Spain, in the present instance, torture was
directed; and, being bound to administer that law, he was vindicated in
its application.
Secondly,--The order for the torture, if not unlawfully, was not
maliciously issued.
Thirdly,--If it were unlawful, yet, if the order were erroneously or
mistakenly issued, it was a complete answer to a criminal charge.
The learned counsel entered at considerable length into these positions,
during which he compared the law of Spain, as it prevailed in Trinidad,
to the law of England, as it subsisted in some of our own islands; and
he contended that the conduct of General Picton was gentleness and
humanity, compared to what might be practised with impunity under the
authority of the British government.
Mr. Gloucester, the Attorney-General of his Majesty in the island, was
then called, and he deposed to the authenticity of several books on the
laws of the island, among which were the Elisondo, the Curia Philippica,
the Bobadilla, the Colom, and the Recopilacion de Leyes.
Various passages in these books were referred to, and translated, for
the purpose of showing that torture was not only permitted in certain
cases, but in the particular instance before the jury.
Mr. Garrow was then allowed to call a witness, to show that, however
such a law might at any time have existed, or might still exist, in
Spain, it did not prevail in the West Indian colonies of that power. To
this end, Don Pedro de Vargass was sworn. He deposed that, during the
early part of his life, he had been regularly initiated and admitted to
the office of an advocate of the Spanish law-courts in the colonies;
that he had practised after his admission, in the regular course, for
two years, and had resided at five or six of the West India islands, in
the pursuit of his profession; and that, according to his knowledge of
the Book of Recapitulation, by which the laws were administered, there
was nothing contained in it to justify the infliction of torture, nor
was torture, to his knowledge, ever resorted to. There was a law of Old
Castile, of the year 1260, which justified the torture in certain cases,
but he never understood that it extended to the West Indies, and it was
so much abhorred in Spain, that it was either repealed, or had fallen
entirely into disuse.
Mr. Dallas and Mr. Garrow then severally addressed the jury; and Lord
Ellenborough in summing up, recommended them to divest their minds of
every feeling which they might have contracted in the course of the
present trial, and to throw every part of the case out of their
consideration, except that which related to this simple point:--What was
the law by which the island of Trinidad was governed at the period of
its capture by the British? It was for the consideration of the jury
whether the law then subsisting authorised personal torture to be
inflicted. By the indulgence of the government of this country, the
subsisting law was to continue; the question was, What was that
subsisting law? The jury would observe, that it did not necessarily
follow, because Trinidad was a colony of Old Spain, that it must
therefore, in every part, have the laws of Old Spain. It did not
originally form any part of that country, but had been annexed to it;
and on what terms there was no positive evidence. It did not appear that
either the schedule peculiar to this island, or the recapitulation,
embraced the criminal law, or made any mention of torture. So, if
torture did subsist in this island, it must be on the authority of law
books read to the jury; and it was ascertained by several persons,
apparently of competent knowledge, that torture had not, within their
recollection, ever been practised in the island. It was, therefore, for
the jury to say, in the absence of all positive proof on the subject,
and in the face of so much negative evidence, whether the law of Spain
was so fully and completely established in Trinidad as to make torture a
part of the law of that island. Without going through the authorities,
he thought the jury might take it to be the existing law of Old Spain,
that torture might be inflicted. It was too much to say, that a
discontinuance of a practice could repeal a law; but they had to
determine whether they were convinced that torture had ever been part of
the law of Trinidad; and also whether they were convinced that it was
part of the law of Trinidad at the time of its capture. If so, they
would enter a special verdict; if otherwise they would find the
defendant guilty.
The jury found--There was no such law existing in the island of
Trinidad, as that of torture, at the time of the surrender of that
island to the British.
Lord Ellenborough--"Then, gentlemen, General Picton cannot derive any
protection from a supposed law, after you have found that no such law
remained in that island at the surrender of it, and when he became its
governor; and therefore your verdict should be, that he is guilty."
By the direction of Lord Ellenborough they therefore found the defendant
"Guilty."
The trial lasted from nine in the morning till seven at night.
Governor Picton walked the hall of the courts during the whole of the
trial. He was a tall man, of a very sallow complexion, apparently about
fifty years of age, and was dressed in black. He was accompanied by
several of the civil officers of the island.
Mr. Dallas moved on the 25th of April for a new trial, upon the
following grounds:--
First,--The infamous character of the girl, who lived in open
prostitution with Pedro Ruiz, and who had been privy to a robbery
committed upon her paramour by Carlos Gonzalez; and that when a
complaint laid against her had been brought before a magistrate, she,
refusing to confess, had been ordered to be tortured.
Secondly,--That Governor Picton, who condemned her to this torture, did
not proceed from any motives of malice, but from a conviction that the
right of torture was sanctioned by the laws of Trinidad; and that he was
rooted in this opinion by a reference to the legal written authorities
in that island.
Thirdly,--That whatever his conduct might be, it was certainly neither
personal malice, nor disposition to tyranny, but resulted, if it should
prove to be wrong, from a misapprehension of the laws of Trinidad.
Fourthly,--That one of the principal witnesses in this trial, M.
Vargass, had brought forward a book, entitled "Recopilacion des Leyes
des Indes," expressly compiled for the Spanish colonies, which did not
authorise torture; and that the defendant had no opportunity of ever
seeing that book; but it had been purchased by the British Institution
at the sale of the Marquis of Lansdowne's library, subsequent to his
indictment, and that having consulted it, it appeared that when that
code was silent upon criminal cases, recourse was always to be had to
the laws of Old Spain, and that those laws sanctioned the torture.
The Court, after some consideration, granted the rule to show cause why
a new trial should not be had, and as the second trial, which was
eventually allowed, was attended with a different result from that of
the first, we think it no more than just to the memory of Governor
Picton to conclude our notice of this affair with the following apology
for his conduct, which is extracted from a respectable monthly
publication:--