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
operatio