JUDICIAL TORTURE IN… SCOTLAND.
… We are told by King James [VI.] himself, in his account of the Gunpowder Conspiracy, that the rack was shown to Guy Fawkes on his examination; and that it was employed at a later period of his reign, is shown by a warrant of the Privy Council, 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.”…1
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, showing 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 the 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 member. 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 McKail, 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.2 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.3 The first person upon whom it was tried was one William Spence, a servant of the unfortunate Earl of Argyle, who hyad previously endured the boot, without making the desired confessions respecting the concern of his master in the Rye-house Plot. This poor 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 efficient to the purpose and intent foresaid [that it, to force the confession of particulars useful to the government], the lords do therefore ordain, that, then 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 if 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 depository 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 any thing 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 the 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 of an hour and a half, without producing any confession, the Chancellor ordered the boots to be applied; but owing to the inexperience of the executioner, he was baulked in this design, and Mr Carstairs was finally remanded without further injury.
Under the threat of a renewal of his sufferings, and the assurance, ratified by a decree of court, that whatever he told should not be employed against any individual, this gentleman subsequently communicated a few particulars, by which he saved himself, but which were used, without scruple, as an adminicle of proof against the unfortunate Baillie of Jerviswood. Carstairs, however, received much approbation from his party for his general conduct throughout the whole of these trying circumstances. He possessed at this time some secrets of great importance, which had been entrusted to him by Fagel, the celebrated Dutch minister, and a divulgence of which would have not only saved him from every other question, but procured him some considerable benefits from the government. From his concealing these, Fagel, as he himself assured Burnet, saw how faithful Carstairs was, and this was the foundation of the extraordinary confidence afterwards reposed in him by William III., who made him virtually, if not nominally, the viceroy of Scotland.
It is worthy of remark, that, after the Revolution, when Carstairs had come into high power, the Privy Council, then composed of different persons, presented to him the identical instrument by which he had been so severely tortured a few years before. It is related that, being one day at court, the king said to him, “I have heard, Principal, that you were tortured with something they call thumbikens; pray what sort of an instrument of torture is it?” “I will show it you,” answered Carstairs, “the next time I have the honour to wait on your majesty.” The principal was as good as his word. “I must try them,” said the king: “I must put in my thumbs here – now, Principal, turn the screw. Oh, not so gently – another turn – another – Stop! stop! no more – another turn, I’m afraid, would make me confess any thing.”
It is curious to know that the addition of the thumbikens to the torturing apparatus of the Privy Council gave a shock to public feeling, and would have fixed some opprobrium upon the members of that all-powerful body, if they had not contrived thereby to gain a few confessions – success thus covering in some measure the atrocity of the means. We are indebted for this information to the painstaking Lord Fountainhall, who very coolly adds, that, in some of these successful cases, the thumbikens had proved their efficiency over the boots, because tried upon persons having small legs. It is not the least interesting circumstance connected with what is here related, that, after the Revolution, when Carstairs, and other sufferers under the iniquitous government of the latter Stuarts, were elevated to places of deserved honour, with the enjoyment of the highest popularity, the Earl of Perth, was visited by a punishment, irregular it is true, and reprehensible in as far as it partook of popular violence, and tyranny on the part of the government, but yet only a natural retribution in the course of circumstances for his odious cruelty. Leaving his house in Edinburgh a prey to the populace, and trembling for his life, he embarked in a small vessel at Bruntisland, designing to follow King James to France. The vessel became an object of suspicion to some individuals at the neighbouring sea-port of Kirkaldy, from which a boat was immediately launched with an armed company, and, the earl being overtaken, was detected under a mean disguise, stripped of every thing he had, and thrown into the common prison of the latter burgh. there was not now a more wretched or abject man in the kingdom, than he who had lately held its highest state office. It appears to have been with some difficulty that he was rescued from the populace, and immured by the new government in Stirling Castle, where he endured a contemptuous captivity of four years, after which he became a fellow-exile with his unhappy master.
Notwithstanding that King William would appear to have been made acquainted with the nature of the torture used in Scotland, his accession did not produce an abandonment of the disgraceful practice. In the Claim of Right framed by the Scottish parliament in April 1689, it is only declared that the using of torture, without evidence, or in ordinary crimes, is contrary to law. It requires no elaborate commentary to prove, that, when there was evidence of extraordinary crimes, torture might still be lawfully used in Scotland, subsequently to the revolution. There is at least one case in which the thumbikens were employed under the sign-manual of the new sovereign. This was the case of Neville Penn or Payne, the person to whom George Duke of Buckingham addressed his Essay on Reason and Religion. He was accused of having gone to Scotland to form a Jacobite plot, and was accordingly, by virtue of the king’s warrant, put to the thumbikens, but without making any disclosure. This was probably the last occasion of the use of torture in our country; but it was not till the year 1708, when the legislature of England and Scotland had become one, that the practice was theoretically abolished. An act of the British parliament, passed in that year, for improving the union of the two kingdoms, was the legal deathblow of the system, by enacting, among other beneficial regulations, that no person accused of any crime in Scotland should thenceforth, under any circumstances, be liable to the torture.
1 Archæologia, x.
2 Fountainhall’s Decisions.
3 A print, accurately representing it, is given in the Edinburgh Magazine, 1817.