Some estimate may be formed of the extent of the wanton extortion experienced by the most industrious part of the community at this period, when it is recollected that not only all whom the curates and clergy chose to denounce as guilty of “horrid contempt of the law,” but all against whom they had the smallest grudge and chose to name as witnesses of the contempt of others, were brought from their homes, week after week, and kept dangling after their court diets. The case of Mr James Aird of Milltoun will furnish an apt illustration. While residing at Kilmarnock upon a very stormy Sabbath, the church being very thin, one Carnegie, the curate, at the close of his afternoon’s sermon caused the kirk doors to be locked, and the names of the heads of families, parishioners, called over, and all the absentees marked on purpose to be fined—an excellent method of procuring attendance on rainy Sundays in country parishes. Mr Aird was not only fined on this occasion, but was brought before the justiciary shortly after, when fifty-five witnesses were examined in order to prove his accession to Bothwell, not one of whom could say a word about the matter; and much as they were inclined to strain every point to get him forfeited, all failed, and he was liberated. Yet was he forced to compound with the Laird of Broich, who, on pretext of alleged converse, had got a gift of his moveables, besides paying upwards of three hundred merks in expenses before the justiciary. Nor did this terminate his sufferings; ere three short months elapsed, parties were anew sent in pursuit of him; and he was, after sleeping in the open fields upwards of forty nights forced to abscond for several years, leaving his house and effects to the mercy of the plunderer.
There is something truly diabolical in first torturing a suspected person to force a confession of crime, and then producing this confession in a criminal court, and upon it, without any other evidence, condemning a man to die; yet such a practice was now attempted to be introduced by Sir George Mackenzie, in order to reach the lives of the persecuted. Before Mr Spreul was recovered from the effects of his torture, the Lord Advocate served him with an indictment; and an extrajudicial examination of several witnesses took place before some of the councillors, against which the prisoner protested; yet although both threatened and cajoled, their evidence appeared so defective, that proceedings were delayed, though the Duke of York pressed his immediate trial, “alleging they were at much pains about poor country people, but Mr Spreul was more dangerous than five hundred of them.” At length, June 10, he was brought before the court upon a new indictment, “charged with treason and rebellion, corresponding and being present with the rebels at Bothwell, also keeping company and corresponding with Mr John Welsh and Mr Samuel Arnot, the bloody and sacrilegious murderers of the late Archbishop of St Andrews”—it being now the custom to accumulate in the indictment a number of charges which the public prosecutor himself knew to be false, and did not even intend attempting to prove.
The panel was assisted by some of the first advocates at the bar—Sir George Lockhart, Mr Walter Pringle, Mr James Deas, Mr Alexander Swinton, and Mr David Theirs. It was contended by his counsel, that he could not now be put upon his trial, or, in legal language, “pass to the knowledge of an inquest,” because, being examined before the council for the same crime, and having denied the same, and thereafter being tortured two several times, persisted in his denial, he cannot by the law of this and all other nations be impanelled nor condemned for that crime upon any new probation.
The reply of the Lord Advocate was indeed worthy of himself:—“A denial upon torture cannot infer absolute liberation, since no man’s obstinacy should be of advantage to him—that were to make disingenuity a remission, and tempt criminals to conceal truth; nor does torture, in law, import any more than a presumption of innocence—and, in law, presumptions may be taken off by clear probation. Were torture to preclude future probation, it will follow, that either crimes must be left undiscovered by not putting suspected persons to torture, or criminals be absolved and suffered to go unpunished, by wanting after opportunities of leading just probation against them. The most that can be pleaded in law, is, that no man can be tried upon the principal and chief points for which he was tortured; but the panel was never tortured upon the grounds he is now to be tried upon; besides, he neither cleared himself nor satisfied the judges, but continued in one insuperable obstinacy. Nor was it necessary to examine him respecting his accession to the rebellion since it can be proven that previously to his torture he confessed the crime.”
Sir George Lockhart offered to prove that the panel was tortured twice most violently upon the very crime; that it is the opinion of all lawyers, when once torture is used, it excludes all other probation, even although there should afterwards appear the fullest evidence against the accused; for, were it not so, double punishment would be undergone—and the practice of this nation has been exactly agreeable thereto. In the year 1632-33, John Toshach being pursued as guilty of statutory treason for wilful fire and burning the house of Frendraught, the panel being interrogated, not upon the whole fact, but whether he entered into the vault with a candle that night the house was burnt, and upon this subjected to torture and denied it. The process was prolonged from August to November, and then to February. His majesty’s advocate urging a new probation, and the panel’s lawyers advancing his torture as a defence, the lords of justiciary sustained it.
Sir George Mackenzie then consented that it would be sufficient for the panel to prove that he was tortured upon this very point by command of the council, and produced the commission. Sir George Lockhart said he did not mean to accuse the committee appointed by the council of illegal procedure by acting in opposition to their commission; but it is certain the panel was interrogated upon the crimes libelled, and his answers drawn up as his confession. The lords repelled the defence, founded upon the torture, inasmuch as the commission of council did not warrant the prisoner’s being questioned upon any of the crimes mentioned in the indictment, and adjourned the trial till the 13th.
At this sederunt several witnesses were examined, but none of them brought the facts home to the prisoner, and the Lord Advocate adduced his alleged confession in presence of the council as a corroborative evidence. Sir George Lockhart argued that the pretended confession before council could not be received, for it was not acknowledged nor signed by the panel, besides being extrajudicial and not taken before a competent judicature. The king’s advocate offered to prove by witnesses that the confession was read to the panel, and he could not disown it; his contumacy, therefore, ought not to be of any use to him, unless one crime was brought forward to defend another. Yet, following the merciful example of the king, his master! and being unwilling to stretch any debateable point, he only adduced this confession against the panel as an adminicle and a presumption, joined with other pregnant grounds,—and what can be stronger? Writs may be forged, witnesses may be false, but a man will never confess untruly to his own hurt, and therefore a confession, even before an incompetent tribunal, unless the confessor can show what made him err. Then assuming, what does not appear plain upon the record, his presence and converse with rebels, he proceeds—“all that is wanting is, whether it was with a criminal intention, of which his own confession must be owned the most solid evidence.”
Sir George Lockhart insisted that there could not be one instance produced of a confession importing forfeiture of life and estate not signed by the person, or judge, if he cannot write; that in pecuniary matters the bare verbal confession would not be admitted to be proven by deposition of witnesses for one hundred pounds Scots—and would it be admitted in a matter of life and fortune? The lords “refused to sustain the confession to be proven by witnesses as a mean of probation, either plenary or adminiculate.”
The advocate, as a last forlorn hope, moved “that the panel be interrogated if he thinks the being at Bothwell Bridge rebellion?” The panel answered, that he conceives that he is not obliged to answer, because it is not the crime libelled, and he may as well be interrogated upon any other point of treason. The lords having, however, put the question, the panel answered, “that was no part of the libel, and his future life should witness him to be both a good subject and a good Christian.” The prosecutor now declared his proof closed, and protested for an assize of error in case the inquest assoilzie the panel. The jury were then enclosed and ordered to return their verdict next day, which they did in the following terms:—“The assize having considered the depositions of the haill witnesses led against John Spreul, una voce, find nothing proven of the crimes contained in the libel which may make him guilty.”
What follows marks as much almost as any deed of the times the tyranny of the government and the servile prostitution of justice at the fountainhead. When Spreul and his procurators, upon his acquittal, took instruments and craved that he might be liberated, his majesty’s advocate produced an act of council previously prepared:—“Edinburgh, June 14, 1681. The council give order and warrant to the justices, notwithstanding of any verdict or sentence upon the criminal dittay lately pursued against John Spreul, to detain him in prison until he be examined upon several other points they have to lay to his charge.” Mr Spreul was accordingly remanded to jail; and such was the persevering greed of his rapacious persecutors, that, on the 14th of July, he, together with a William Lin, writer in Edinburgh, was brought before the privy council for being at field-conventicles. They were both accused of having at least heard Presbyterian ministers preach when some of the congregation were without doors, and likewise of resett and converse with intercommuned persons; and the truth of the accusation being referred to their oaths, because they would not swear, they were both found guilty, and each of them fined five hundred pounds sterling and sent to the Bass. Mr Spreul lay there six years, whence, “from his long continuance in that place,” Wodrow adds, “he has yet the compellation of Bass John Spreul, whereof he needs not be ashamed.”[[134]]