A34 
be Chief Justice, as a Privy Coun- 
sellor sometimes sanctioned. prac- 
tices, which he lived to condemn 
as a writer. 
But the silence of the record does 
not allow us to suppose that the 
king was either present, or knew of 
this transaction. 
When, Sir Edward Coke. pub- 
lished his second Institute, he gave 
it as his opinion, that. torture was 
prohibited by the following words 
of the great Charter: ‘* Nudlus liber 
homo aliquo modo destruatur nist per 
legale judicium parium suorum vel per 
legem terre.’ Nevertheless, I fear 
that if our criminal prcceedings, 
from that great epoch to the ac- 
cession of the Tudor family, were 
searched with malicious diligence, 
Many instances of torture would 
be found, though Magna Charta 
was, meanwhile, confirmed by se- 
veral statutes. During the reigos of 
the Tudors, torture was often used 
upon slight occasions. Lord 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, Ma- 
dam, 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 whe- 
ther he were the author.” The 
rack was shewn to Guy Fawkes on 
his examination, as King James 
relates. ‘Torture was used on Pea- 
cock in 1620, as the warrant be- 
fore mentioned evinces. When 
Felton assassinated Buckingham in 
1628, and the question was pro- 
posed for discovering his accom- 
ANNUAL REGISTER, 17092. 
plices, the judges declared, that 
consistent with law, torture. could 
not be used, as Rushworth has 
recorded. / Aaa 
Such was the former practice; 
and such the happy disuse of tor- 
tore in England; Yet, in Scotland, 
the rack continued. to terrify and. 
debase the people for ages after~ 
wards. Sir George Mackenzie has 
_a whole chapter Of Torture; shew-. 
ing 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 thar all 
lawyers were of opinion, that even 
after sentence, criminals might be 
tortured, for knowing their accom- 
plices. Yet, be shews incidentally, 
that though the practice of torture 
continued in Scotland till the Re- 
volution, yet the privy council re- 
fused, in 1666, to order the Cove- 
nanters to be racked after con- 
demination ; assigning as a reason, 
‘* Nam post condemnationem, judices 
‘© functt sunt officio.”? The learned 
Lord Stair contirms what Sir George 
. Mackenzie had thus laid down be- 
fore him. 
It is very remarkable, that when 
the parliament of Scotland framed 
their claim of right, in April 1689, 
they only declared, that the using 
torture without evidence, or in or- 
dinary crimes, is contrary to law. 
It requires no elaborate conimen- 
tary to prove, that when there was 
evidence of extraordinary crimes, 
torture might still be lawfully used 
in Scotland subsequent to the Re- 
volution. Jt was the union, and 
the salutary spirit which that happy 
measure brought with it, that freed 
Scotland from the danger and re- 
proach of using torture im any case. 
And 
ee a 
