Nothing in the proceedings at Edinburgh astonishes an Englishman more than the manner in which the Estates dealt with the practice of torture. In England torture had always been illegal. In the most servile times the judges had unanimously pronounced it so.
Those rulers who had occasionally resorted to it had, as far as was possible, used it in secret, had never pretended that they had acted in conformity with either statute law or common law, and had excused themselves by saying that the extraordinary peril to which the state was exposed had forced them to take on themselves the responsibility of employing extraordinarily means of defence. It had therefore never been thought necessary by any English Parliament to pass any Act or resolution touching this matter. The torture was not mentioned in the Petition of Right, or in any of the statutes framed by the Long Parliament. No member of the Convention of 1689 dreamed of proposing that the instrument which called the Prince and Princess of Orange to the throne should contain a declaration against the using of racks and thumbscrews for the purpose of forcing prisoners to accuse themselves. Such a declaration would have been justly regarded as weakening rather than strengthening a rule which, as far back as the days of the Plantagenets, had been proudly declared by the most illustrious sages of Westminster Hall to be a distinguishing feature of the English jurisprudence.306 In the Scottish Claim of Right, the use of torture, without evidence, or in ordinary cases, was declared to be contrary to law. The use of torture, therefore, where there was strong evidence, and where the crime was extraordinary, was, by the plainest implication, declared to be according to law; nor did the Estates mention the use of torture among the grievances which required a legislative remedy.
In truth, they could not condemn the use of torture without condemning themselves. It had chanced that, while they were employed in settling the government, the eloquent and learned Lord President Lockhart had been foully murdered in a public street through which he was returning from church on a Sunday.
The murderer was seized, and proved to be a wretch who, having treated his wife barbarously and turned her out of doors, had been compelled by a decree of the Court of Session to provide for her. A savage hatred of the judges by whom she had been protected had taken possession of his mind, and had goaded him to a horrible crime and a horrible fate. It was natural that an assassination attended by so many circumstances of aggravation should move the indignation of the members of the Convention. Yet they should have considered the gravity of the conjuncture and the importance of their own mission. They unfortunately, in the heat of passion, directed the magistrates of Edinburgh to strike the prisoner in the boots, and named a Committee to superintend the operation. But for this unhappy event, it is probable that the law of Scotland concerning torture would have been immediately assimilated to the law of England.307Having settled the Claim of Right, the Convention proceeded to revise the Coronation oath. When this had been done, three members were appointed to carry the Instrument of Government to London. Argyle, though not, in strictness of law, a Peer, was chosen to represent the Peers: Sir James Montgomery represented the Commissioners of Shires, and Sir John Dalrymple the Commissioners of Towns.
The Estates then adjourned for a few weeks, having first passed a vote which empowered Hamilton to take such measures as might be necessary for the preservation of the public peace till the end of the interregnum.