One: who had recruited them into the plot? Two: did the plot herald a coming rebellion? And three: Who were their co-conspirators? What the torturers were not asked to do was to extract confessions from Spreull and Hamilton, and indeed the government was at pains to point out that they were being subjected to torture only after they had freely confessed to involvement in the plot. They were accused of plotting to murder the king, Charles II, and in particular the government was looking for answers to three questions. If judicial torture was felt to be so problematic, why was it used at all? We can get a good sense of this from considering one case from 1680, when two men, John Spreull and Robert Hamilton, were put to torture.
George Mackenzie of Rosehaugh, by Godfrey Kneller The ineffectiveness of torture was particularly stark, Rosehaugh and others felt, when it was being used to extract confessions, the evidential value of which was widely regarded as suspect. As George Mackenzie of Rosehaugh, a prominent late-17th-century lawyer and twice Lord Advocate, put it: ‘Some obstinat persons do oftentimes deny the Truth, whilst others who are frail, and timorous, confess for fear, what is not true’. More pertinently, the authorities were often sceptical about how effective torture was as a judicial tool. Why was torture so comparatively rare in Scotland? In part, no doubt, it was to do with exactly the same ethical qualms that animate people today – although, given how ready the Scottish judicial system was to inflict vicious physical punishment on criminals, this should not be pushed too far. And these were rarely granted: between 15, only 39 warrants were issued, covering fewer than 50 individuals. In order to torture a suspected or convicted criminal – or at least, in order to do so legally – you needed to have a specific warrant from Parliament or the Privy Council. But even during this period, its use was heavily regulated. While there are some suggestions that torture was used during the Middle Ages – the assassins of King James I (d.1437) may have undergone it, for example – the ‘golden age’ of judicial torture in Scotland was the early modern era, and in particular the 17th century. In reality, however, the use of torture in Scottish History has been much more limited, and much more controversial, than we might expect. Grisly images of broken, brutalised bodies worm their way into our imaginations, especially when we’re thinking about Scotland, whose judicial system is popularly assumed to have been particularly bloodthirsty. Dr Allan Kennedy explores ideas and practice around the use of judicial torture in early modern Scotland.įollow Allan on Twitter at: we discuss crime and punishment in the past, we often instinctively think about torture.