However, he was, on the second of March, brought before the lords judiciary, and indicted for being concerned at Pentland, and for the attempt on the arch-bishop of St Andrews; but he pleaded not guilty, and insisted that the things alledged against him should be proved: The lords postponed the affair till the 25th; meanwhile, the council made an act March 12, specifying that Mr. James Mitchel confessed his firing the pistol at the arch-bishop of St. Andrews, upon assurance given him of life by one of the committee, who had a warrant from the lord commissioner and secret council to give the same, and therefore did freely confess, &c. In the said act it was declared, That, on account of his refusing to adhere to his confession, the promises made to him were void, and that the lords of justiciary and jury ought to proceed against him, without any regard to these. About the 25, he was brought before the justiciary; but as there was no proof against him, they with consent of the advocate protracted the affair, and he was again remanded to prison.
Thus he continued until Jan. 6th, 1676, that he was ordered to be examined before the council by torture, concerning his being in the rebellion (as they formed it) in the year 1666. Accordingly he was brought before them upon the 18th, about six o'clock at night;—Linlithgow, being preses, told him, He was brought before them to see whether he would adhere to his former confession.—He answered, "My lord, it is not unknown to your lordship, and others here present, that, by the council's order, I was remitted to the lords of justiciary, before whom I received an indictment at my lord advocate's instance, &c. to which indictment I answered at three several diets, and at the last diet, being deserted by my lord advocate, I humbly conceive, that, both by the law of the nation, and the practice of this court, I ought to have been set at liberty; yet notwithstanding, I was, contrary to law, equity and justice, returned to prison; And upon what account I am this night before you, I am ignorant." The preses told him, He was only called to see if he would own his former confession.—He replied, "He knew no crime he was guilty of, and therefore made no such confession as he alledged." Upon this, the treasurer depute said, The pannel was one of the most arrogant liars and rogues he had known.—Mr. Mitchel replied, "My lord, if there were fewer of these persons, you have been speaking of, in the nation, I should not be standing this night at the bar; but my lord advocate knoweth, that what is alledged against me is not my confession." The preses said, Sir, we will cause a sharper thing make you confess.—He answered, "My lord, I hope you are Christians and not pagans." Then he was returned to prison.
On the 22d, he was again called before them, to see if he would own his former confession, and a paper produced, alledged to be subscribed by him; but he would not acknowledge the same. The preses said, You see what is upon the table (meaning the boots), I will see if that will make you do it. Mr. Mitchel answered, "My lord, I confess, that, by torture, you may cause me to blaspheme God, as Saul did compel the saints; you may compel me to speak amiss of your lordships; to call myself a thief, a murderer, &c. and then pannel me on it: But if you shall here put me to it, I protest before God and your lordships, that nothing extorted from me by torture, shall be made use of against me in judgment, nor have any force in law against me, or any other person. But to be plain with you, my lords, I am so much of a Christian, that whatever your lordships shall legally prove against me, if it be truth, I shall not deny it;—but, on the contrary, I am so much of a man, and a Scotsman, that I never held myself obliged, by the law of God, nature and nations, to be my own accuser." The treasurer-depute said, He had the devil's logic, and sophisticated like him: ask him whether that be his subscription. Mr. Mitchel replied, I acknowledge no such thing; and he was sent back to prison.
Upon the 24th, they assembled in their robes in the inner parliament house, and the boots and executioner were presented. Mr. Mitchel was again interrogated, as above, but still persisting, he was ordered to the torture. And he, knowing that, after the manner of the Spanish inquisition, the more he confessed, either concerning himself or others, the more severe the torture would be, to make him confess the more, delivered himself in this manner:—"My lord, I have been now these two full years in prison, and more than one of them in bolts and fetters, which hath been more intolerable to me than many deaths, if I had been capable thereof; and it is well known, that some in a shorter time have been tempted to make away with themselves; but respect and obedience to the express law and command of God hath made me to undergo all these hardships, and I hope this torture with patience also, viz. that for the preservation of my own life and the life of others, as far as lies in my power; and to keep innocent blood off your lordships persons and families, which, by shedding of mine, you would doubtless bring upon yourselves and posterity, and wrath from the Lord to the consuming thereof, till there should be no escaping; and now again I protest, &c. as above: When you please, call for the man appointed for the work." The executioner being called, he was tied in a two armed chair, and the boot brought; the executioner asked which of the legs he should take; the lords bade him take any of them; the executioner laying the left in the boot, Mr. Mitchel, lifting it out again, said, "Since the judges have not determined, take the best of the two, for I freely bestow it in the cause;" and so laid his right leg into the engine. After which the advocate asked leave to speak but one word, but notwithstanding, insisted at a great length; to which Mr. Mitchel answered, "The advocate's word or two hath multiplied to so many, that my memory cannot serve, in the condition wherein I am (the torture being begun) to resume them in particular; but I shall essay to answer the scope of his discourse; whereas he hath been speaking of the sovereignty of the magistrate, I shall go somewhat further than he hath done, and own that the magistrate whom God hath appointed, is God's depute; both the throne and the judgment are the Lord's, when he judgeth for God and according to his law; and a part of his office is to deliver the poor oppressed out of the hand of the oppressor, and shed no innocent blood, Jerem. xxii. 3, &c. And whereas the advocate hath been hinting at the sinfulness of lying on any account; it is answered, that not only lying is sinful, but also a pernicious speaking of the truth, is a horrid sin before the Lord, when it tendeth to the shedding of innocent blood; witness the case of Doeg, Psalm lii. compared with 2 Sam. xxii. 9. But what my lord advocate hath forged against me is false, so that I am standing upon my former ground, viz. the preservation of my own life, and the life of others, as far as lies in my power, the which I am expressly commanded by the Lord of hosts."
Then the clerk's servant, being called, interrogated him in the torture, in upwards of thirty questions, which were all in write, of which the following are of the most importance.
Are you that Mr. James Mitchel who was excepted out of the king's grace and favour?
A. I never committed any crime deserving to be excluded.
Q. Were you at Pentland?
A. No.
Q. Were you at Ayr, and did you join with the rebels there?