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Anglo-Scottish Relations from 1603 to 1900$
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T C Smout

Print publication date: 2005

Print ISBN-13: 9780197263303

Published to British Academy Scholarship Online: January 2012

DOI: 10.5871/bacad/9780197263303.001.0001

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Judicial Torture, the Liberties of the Subject, and Anglo-Scottish Relations, 1660–1690

Judicial Torture, the Liberties of the Subject, and Anglo-Scottish Relations, 1660–1690

(p.75) 5 Judicial Torture, the Liberties of the Subject, and Anglo-Scottish Relations, 1660–1690
Anglo-Scottish Relations from 1603 to 1900

Clare Jackson

British Academy

This chapter provides a picture of the uses to which judicial torture was put after 1660. It also reconsiders Hume's ‘vestige of barbarity’: the role of judicial torture in late seventeenth-century Scotland. It first explores the practice of judicial torture in its broader legal, political, and philosophical contexts before turning to consider three specific instances wherein torture was sanctioned. The first concerns the torture in 1676 of the Covenanting preacher, James Mitchell, following his alleged attempt to assassinate the head of the established church, Archbishop James Sharp of St Andrews. The second investigates the torture of William Spence and William Carstares in 1684 on suspicion of treasonable attempts to foment an Anglo-Scottish rebellion against Charles II's authority, and the final case addresses the torture in 1690 of an English political agitator, Henry Neville Payne, in connection with Anglo-Scottish Jacobite intrigues being concerted against the government of William and Mary. Moreover, it describes the role of judicial torture within a domestic Scottish context. It is noted that if judicial torture is regarded as ‘an engine of state, not of law’, primarily deployed to protect civil society, rather than to punish known crimes, then some chilling contemporary parallels emerge.

Keywords:   judicial torture, rebellion, James Mitchell, James Sharp, William Spence, William Carstares, Henry Neville Payne, Jacobite

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