useless it is for persons without discrimination, judgment, perseverance, and sufficient means, to leave their homes for this ill-fated country.

JUDICIAL TORTURE IN ENGLAND AND SCOTLAND.

IN the opinion of Sir Edward Coke, torture for confession was held to be forbidden by that part of the Magna Charta which asserts that no freeman can be injured in his person in any way except by the legal judgment of his equals (a jury) or by the law of the land. Whether it was so or not, torture continued to be used in England for many centuries after the celebrated convention of Runnymede. During the reigns of the Tudors, in particular, it was often employed on very slight occasions. Bacon relates of Queen Elizabeth, that, when she could not be persuaded that a book was really written by the person whose name it bore, 'she said with great indignation, that she would have him racked to produce his author. I replied: "Nay, madam, he is a doctor; never rack his person; rack his style: let him have pen, ink, and paper, and help of books, and be enjoined to continue his story, and I will undertake, by collating the styles, to judge whether he were the author." We are told by King James himself, in his account of the Gunpowder Conspiracy, that the rack was shewn to Guy Fawkes on his examination; and that it was employed at a later period of his reign, is shewn by a warrant of the privycouncil, dated in February 1619, and addressed to the Lieutenant of the Tower, commanding that officer to examine Samuel Peacock, suspected of high treason, 'and to put him, as there shall be cause, for the better manifestation of the truth, to the torture, either of the manacles or the rack.'* But in 1628, when a proposal was made

*Archæologia, x.

to cause Felton, the assassin of the Duke of Buckingham, to discover his accomplices, the judges declared that, consistent with law, torture could not be used for that purpose; and it was never afterwards employed in England.

In Scotland, the extortion of confession by this abominable means was a regular portion of the judicial powers. In his work on the Criminal Law of Scotland, Sir George Mackenzie has a whole chapter' Of Torture,' shewing that the privy-council, or the supreme judges, could only use the rack; how those were punished who inflicted torture unjustly; and who were the persons that the law exempted; and he insists that all lawyers were of opinion that, even after sentence, criminals might be tortured for the discovery of their accomplices. The same view is taken by Lord Stair, a lawyer of liberal politics. The most conspicuous instrument of torture used in Scotland was one called the boots, or, as it is usually spelled in old law-books and warrants, the buits; which consisted of an oblong square box, firmly hooped with iron, and open at both ends, having loose plates in the inside, and which could be put upon the leg of the criminal or witness proposed to be examined. When the leg was insinuated into this instrument, wedges were put between the loose plates and the solid frame of the box, and while the executioner stood ready with a mallet in his hand, the judge repeated his hitherto unavailing question. At every refusal of the prisoner to confess, the mallet descended with force upon one of the wedges, so as to squeeze the limb; and this was sometimes done so frequently, that not only the blood would flow, but the very marrow be pressed from the bone. We read that, in 1596, the son and daughter of a woman accused of witchcraft were put to the torture to make her confess : the former suffered fifty-seven strokes of the hammer in the boots, the mother remaining obdurate all that time. The torture of the daughter, who was only seven years old, was by pilniewinks; an instrument of which the exact nature is not now understood, though it may be safely supposed to have referred to the little fingers, as the word is still used in Scotland to describe that diminutive mem

ber. In the record of the same case, mention is made of caspitaws or caspicaws, and of tosots, as instruments of torture. During the sixteenth and seventeenth centuries, witches were tortured in various ways, by judges, clergymen, and private individuals; but our remarks are for the present confined to the instruments used in the higher courts, and on the more solemn judicial occasions.

After the Restoration, when severe measures became necessary to support a government so opposed in every relation to the spirit of the Scottish people, the torture was used with a frequency unknown before, being applied in the examination of every prisoner who was suspected of possessing useful information. The gentle Hugh M‘Kail, while under trial for having accompanied the Pentland insurgents as a clergyman, in 1666, was put into the boot, with the view of eliciting what he might know concerning a suspected plot. Eleven strokes were dealt to him, so as nearly to crush his limb to pieces, though the meek sufferer protested before God, that he could say no more than he had done, though all the joints in his body were in as great torture as his poor leg. After all this suffering he was condemned to death. The boots were used almost exclusively for such purposes till towards the close of the reign of Charles II., when a new and equally efficient instrument, which had the advantage of being less brutal in appearance, was introduced by General Dalyell, who had seen it used in Russia, during the time when he was in the service of Alexis Michaelowitsch.* It was called the thumbikens, and consisted of two pieces of iron, the upper of which could be pressed downwards upon the lower by means of a screw, so as to squeeze the thumbs of the prisoner.+ The first person upon whom it was tried was one William Spence, a servant of the unfortunate Earl of Argyle, who had previously endured the boot, without making the desired confessions respecting the concern of his master in the Rye-house Plot. This poor

*Fountainhall's Decisions.

A print, accurately representing it, is given in the Edinburgh Magazine, 1817.

man, being found peculiarly obstinate, is said to have been put into a hair shirt, pricked, and kept from sleep for nine nights-and all this under the domestic superintendence of a member of the privy-council! Every other means having failed, the thumbikens were brought into play; his thumbs were crushed beneath the merciless instrument, and still he held out. It was only by the threat of a new application of the boot that he was finally brought to the terms of his inhuman persecutors. An act was at this time passed by the privy-council, stating, that 'whereas there is now a new invention and engine called the thumbikens, which will be very effectual to the purpose and intent foresaid [that is, to force the confession of the particulars useful to the government], the lords do therefore ordain, that, when any person shall by their order be put to the torture, the boots and thumbikens both be applied to them, as it shall be found fit and convenient.'

In giving an account of the efforts of the Earl of Perth to recommend himself to the favour of the Duke of York, with the view of being made Chancellor of Scotland, Bishop Burnet gives some curious information respecting the use of the torture. When any are to be struck in the boots,' says he, 'it is done in presence of the council, and upon that occasion almost all offer to run away. The sight is so dreadful, that without an order restraining such a number to stay, the board would be deserted. But the duke, while he had been in Scotland, was so far from withdrawing, that he looked on all the while with an unmoved indifference; and with an attention, as if he had been looking on some curious experiment. This gave a

terrible idea of him to all who observed it, as of a man that had no bowels or humanity in him. Lord Perth, observing this, resolved to let him see how well qualified he was to become an inquisitor-general. The rule about the boots was, that, upon one witness and presumption together, the question might be given; but it was never known to be twice given, or that any other species of torture beside the boots might be used at pleasure. In the courts of inquisition, they do, upon suspicion, or if a

man refuses to answer upon oath as he is required, give him the torture, and repeat it, and vary it, as often as they think fit, and do not give over till they have got out of their mangled prisoners all that they have a mind to know from them. This Lord Perth now resolved to make his pattern,' &c. The bishop then proceeds to describe the variety of tortures applied to Spence, as above related.

Another of the persons seized on suspicion of a concern in the Rye-house Plot, was the celebrated William Carstairs, subsequently Principal of the College of Edinburgh, and the depositary of the confidence of King William III. respecting the government and crown patronage of Scotland. This young clergyman, being supposed to possess very valuable information, was brought before the privy-council, on the 5th of September 1684, and asked by the Earl of Perth if he would answer upon oath such questions as should be put to him. He boldly answered, that, if any accusation were brought against himself, he would do his best to answer it, but he positively refused to say anything respecting others. He was asked if he had any objections to be put to the torture! and replied that he could not but protest against a practice that was a reproach to human nature, and as such had been banished from the criminal courts of every free country. The executioner was then brought forward with the thumbikens, and the screw pressed so hard, that, according to Burnet, it could not be relaxed till the smith who had manufactured the instrument was brought with his tools to undo it. During this horrid interval, the face of the prisoner was suffused with perspiration, and the Earl of Queensberry and Duke of Hamilton, overcome by their feelings, rushed from the room. Perth, however, sat still, without betraying the least emotion. On the contrary, when Carstairs exclaimed that he believed the bones to be broken to pieces, his lordship told him he hoped to see every bone in his body broken to pieces, if he should continue obstinate. Having kept his victim under this terrible torture for an hour and a half, without producing any confession, the chancellor ordered the boots