The domestic condition of the people is so much affected by certain sacred principles of law, that the history and progress of these becomes a matter of the first consequence. We have seen how the new rulers acted in regard to the sacredness of the subject from imprisonment not meant to issue in trial; we shall now see how they comported themselves respecting the unlawfulness of torture, which they had proclaimed as loudly in their Declaration or Claim of Rights.[[47]] We find the Duke of Hamilton, within three months of his presiding at the passing of this ‘Declaration,’ |1690.| writing to Lord Melville about a little Jacobite conspiracy—‘Wilson can discover all: if he does not confess freely, it’s like he may get either the boots or the thumbikens.’[[48]] When, at the crisis of the battle of the Boyne, the plot of Sir James Montgomery of Skelmorley, the Earl of Annandale, Lord Ross, and Robert Fergusson, for the restoration of King James, broke upon the notice of the new government, a Catholic English gentleman named Henry Neville Payne, who had been sent down to Scotland on a mission in connection with it, was seized by the common people in Dumfriesshire, and brought to Edinburgh. Sir William Lockhart, the solicitor-general for Scotland, residing in London, then coolly wrote to the Earl of Melville, secretary of state at Edinburgh, regarding Payne, that there was no doubt he knew as much as would hang a thousand; ‘but,’ says he, ‘except you put him to the torture, he will shame you all. Pray you put him in such hands as will have no pity on him; for, in the opinion of all, he is a desperate cowardly fellow.’

The Privy Council had in reality by this time put Payne to the torture; but the ‘cowardly fellow’ proved able to bear it without confession. On the 10th of December, under instructions signed by the king, and countersigned by the Earl of Melville, the process was repeated ‘gently,’ and again next day after the manner thus described by the Earl of Crawford, who presided on the occasion: ‘About six this evening, we inflicted [the torture] on both thumbs and one of his legs, with all the severity that was consistent with humanity, even unto that pitch that we could not preserve life and have gone further, but without the least success.... He was so manly and resolute under his suffering, that such of the Council as were not acquainted with all the evidences, were brangled and began to give him charity, that he might be innocent. It was surprising to me and others, that flesh and blood could, without fainting, and in contradiction to the grounds we had insinuat of our knowledge of his accession in matters, endure the heavy penance he was in for two hours.... My stomach is truly so far out of tune, by being a witness to an act so far cross to my natural temper, that I am fitter for rest than anything else.’

The earl states, that he regarded Payne’s constancy under the torture as solely owing to his being assured by his religion that it would save his soul and place him among the saints. His |1690.| lordship would never have imagined such self-consideration as supporting a westland Whig on the ladder in the Grassmarket.[[49]] The conviction doubtless made him the more resolute in acting as ‘the prompter of the executioner to increase the torture to so high a pitch’—his own expression regarding his official connection with the affair. It is curious that none ever justly apprehend, or will admit, the martyrdoms of an opposite religious party. Always it is obstinacy, vanity, selfishness, or because they have no choice. Sufferings for conscience’ sake are only acknowledged where one’s own views are concerned. It must be admitted as something of a deduction from the value of martyrdom in general.

We after this hear of Payne being in a pitiable frame of body under close confinement in Edinburgh Castle, no one being allowed to have access to him but his medical attendants. For a little time there was a disposition to give him the benefit of the rule of the Claim of Rights regarding imprisonment, and on the 6th January 1691, it was represented to King William that to keep Payne in prison without trial was ‘contrare to law.’ Nevertheless, and notwithstanding repeated demands for trial and petitions for mercy on his part, Neville Payne was kept in durance more or less severe for year after year, until ten had elapsed! During this time, he became acquainted with the principal state-prisons of Scotland, including the Edinburgh Tolbooth.

At length, on the 4th of February 1701, the wretched man sent a petition to the Privy Council, shewing ‘that more than ten years’ miserable imprisonment had brought [him] to old age and extreme poverty, accompanied with frequent sickness and many other afflictions that are the constant attendants of both.’ He protested his being all along wholly unconscious of any guilt. He was then ordered to be liberated, without the security for reappearance which was customary in such cases.[[50]]

1691. Jan.

Scotland is sometimes alluded to in the south, with an imperfect kind of approbation, as an excessively strait-laced country; but if our neighbours were to consult the records of the General Assembly |1691.| on the subject, they would find it powerfully defended from all such charges. An act was passed by that venerable body for a national fast to be held on the second Thursday of this month, and the reasons stated for the pious observance are certainly of a kind to leave the most free-living Englishman but little room for reproach. It is said: ‘There hath been a great neglect of the worship of God in public, but especially in families and in secret. The wonted care of sanctifying the Lord’s day is gone ... cities full of violence ... so that blood touched blood. Yea, Sodom’s sins have abounded amongst us, pride, fulness of blood, idleness, vanities of apparel, and shameful sensuality.’ Even now, it is said, ‘few are turned to the Lord; the wicked go on doing wickedly, and there is found among us to this day shameful ingratitude for our mercies [and] horrid impenitency under our sins.... There is a great contempt of the gospel, and great barrenness under it ... great want of piety towards God and love towards man, with a woful selfishness, every one seeking their own things, few the public good or ane other’s welfare.’

The document concludes with one noble stroke of, shall we say, self-portraiture?—‘the most part more ready to censure the sins of others, than to repent of their own.’[[51]]

Jan. 20.

John Adair, mathematician, had been proceeding for some years, under government patronage and pay, in his task of constructing maps of the counties of Scotland, ‘expressing therein the seats or houses of the nobility and gentry, the most considerable rivers, waters, lochs, bays, firths, roads, woods, mountains, royal burghs, and other considerable towns of each shire’—a work ‘honourable, useful, and necessary for navigation.’ He was now hindered in his task, as he himself expressed the matter, ‘by the envy, malice, and oppression of Sir Robert Sibbald, Doctor of Medicine, who, upon pretence of a private paction and contract, extorted through the power he pretended, took the petitioner [Adair] bound not to survey any shire or pairt thereof without Sir Robert his special advice and consent, and that he should not give copies of these maps to any other person without Sir Robert his special permission, under a severe penalty.’