be chief juftice, as.a privy councel- 
lor fometimes fanctioned practices, , 
which he lived to condemn as a 
writer. 
But the filence of the record does 
not allow us to fuppofe, that the 
king was either prefent, or knew of . 
this tranfaction. 
When Sir Edward Coke pub- 
lifhed his fecond Inftitute, he gave 
it as his opinion, that torture was 
prohibited by the following words 
of the great Charter: “ Nullus liber 
homo aliquo modo deftruatur nifi per. 
© logale judicium parium fuorum, aut 
“ per legem terrae.” 
ings, from that great epoch to the 
acceffion of the Tudor family, were 
fearched with malicious diligence, 
many inftances of torture would be 
found, though Magna Charta was, 
meanwile, confirmed by feveral fta- 
tutes. During the reigns of the 
Tudors, torture was often ufed upon 
flight occafions. Lord Bacon re- 
lates of queen Elizabeth, that when 
fhe could not be perfuaded that a 
book was really written by the per- 
fon whofe name it bore, fhe faid 
with great mdignation, that fhe 
would have him racked, to produce 
his author. © I replied, «“ Nay, 
- Madam, he is a doétor, never 
* rack his perfon, rack his ftyle; 
“ let him have pen, ink, and paper, 
“and help of books, and he en- 
_-** joined to continue his ftory, and 
* I will undertake, by collating 
*« the ftyles, to judge whether he 
* were the author,”” The rack was 
fhewn to Guy Fawkes on his ex- 
amination, as king James himfelf 
relates. ‘Torture was ufed on Pea- 
@ck in 1620, as the warrant before- 
mentioned evinces. When Felton 
aflaflinatedBuckingham in 1628, and 
the queftion. was propofed for dif- 
Vou, XXXII, 
AuN: Foe Tb B-S: 
Neverthelefs _ 
I fear, that if our criminal proceed-_ 
97 
covering his accomplices, the judges 
declared, that confiftent with law 
torture could not be ufed; as Ruth- 
worth has recorded. 
Such was the former practice ; 
and fuch the happy difufe of tor- 
ture in England! Yet, in Scotland, 
‘rack continued to terrify and 
debafe the people for ages after- _ 
wards. Sir George Mackenzie has 
a whole chapter Of Torture; fhewing 
that the privy council, or the fu- 
preme judges, could only ufe the 
rack ; how thofe were punifhed whe 
infli€ed torture anjuftly; and who 
were the perfons that the law ex- 
empted: and he infifts, that all law- 
yers were of opinion, that even after 
fentence criminals might be tor- 
tured, for knowing their accom- 
plices. Yet, he fhews incidentally, 
that though the practice of torture 
continued in Scotland till the revo- 
lution, yet the privy council refufed 
in 1666, to order the covenanters to 
be racked after condemnation; af- 
figning as a reafon: “ Nam po/? con- 
“« demnationem, judices fun&i funt of~ 
« ficio.”” The learned lord Stair con- 
firms what Sir George Mackenzie 
had thus laid down before him. 
It is very remarkable, that when 
the parliament of Scotland framed 
their claim of right, in April 1689, 
they only declared, that the ufing 
torture, without evidence, or in ore 
dinary ¢rimes, is contrary to law. 
It requires no elaborate commentary 
to prove, that when there was evi- 
dence of extraordinary crimes, tor- 
ture might ftill be lawfully ufed in 
Scotland fubfequent to the revolu- 
tion. It was the union, and the fa- 
lutary fpirit which that happy mea- 
fure brought with it, that freed 
Scotland from the danger and re- 
proach of ufing torture in any cafe. 
And it was the a& of the Britifh 
H parliament 
