THERE are two reflections which arise from what we have stated in the former chapter, too natural to escape observation.
In the first place, we are led to conclude that all leagues or treaties between nations, which are designed to be permanent, should be grounded not only on equitable, but on liberal principles. Whatever advantages are assumed from the superior strength, or more insidiously attained by the superior cunning, of one party or the other, operate as so many principles of decay, by which the security of the league is greatly endangered, if not actually destroyed. There can be no doubt that the open corruption and precipitate violence with which the Union was forced on, retarded for two generations the benefits which would otherwise have arisen from it; and that resentment, not so much against the measure itself, as against the disadvantageous terms granted to Scotland, gave rise to two, or, taking into account the battle of Glenshiel, to three civil wars, with all the peculiar miseries which attended them. The personal adherence of many individuals to the Stewart family might have preserved Jacobite sentiments for a generation, but would scarce have had intensity sufficient to kindle a general flame in the country, had not the sense of the unjust and illiberal manner in which the Union was concluded, come in aid of the zeal of the Jacobites, to create a general or formidable attack on the existing Government. As the case actually stood, we shall presently see how narrowly the Union itself escaped destruction, and the nation a counter-revolution.
This conducts us to the second remark, which I wish you to attend to, namely, how that, with all the facilities of intercourse afforded by the manners of modern nations, it nevertheless is extremely difficult for one government to obtain what they may consider as trustworthy information concerning the internal affairs and actual condition of another, either from the statements of partisans, who profess themselves in league with the state which makes the enquiry, or from agents of their own, sent on purpose to pursue the investigation. The first class of Informants deceive their correspondents and themselves, by the warm and sanguine view which they take of the strength and importance of their own party; the last are Incapable of forming a correct judgment of what they see and hear, for want of that habitual and familiar knowledge of the manners of a country which is necessary to enable them to judge what peculiar allowances ought to be made, and what special restrictions may be necessary, in interpreting the language of those with whom they communicate on the subject of their mission.
This was exemplified in the enquiries instituted by Louis XIV. for ascertaining the exact disposition of the people of Scotland towards the Chevalier de St George. The agent employed by the French monarch was Lieutenant-colonel Hooke, an Englishman of good family. This gentleman followed King James II. to France, and was there received into the service of Louis XIV. to which he seems to have become so much attached as to have been comparatively indifferent to that of the son of his former master. His instructions from the French King were, to engage the Scots who might be disposed for an insurrection as deeply as possible to France, but to avoid precise promises, by which he might compromise France in any corresponding obligation respecting assistance or supplies. In a word, the Jacobite or anti-unionist party were to have leave from Louis to attempt a rebellion against Queen Anne, at their own proper risk, providing the Grand Monarque, as he was generally termed, should be no further bound to aid them in the enterprise, or protect them in case of its failure, than he should think consistent with his magnanimity, and convenient for his affairs. This was no doubt a bargain by which nothing could be lost by France, but it had been made with too great anxiety to avoid hazard, to be attended with much chance of gaining by it. With these instructions Colonel Hooke departed for Scotland in the end of February or beginning of March 1707, where he found, as had been described by the correspondence kept up with the Scots, different classes of people eager to join in an insurrection, with the purpose of breaking the Union, and restoring the Stewart family to the throne. We must first mention the state in which he found the Jacobite party, with whom principally he came to communicate.
This party, which, as it now included the Country faction, and all others who favoured the dissolution of the Union, was much more universally extended than at any other period in Scottish history, either before or afterwards, was divided into two parties, having for their heads the Dukes of Hamilton and Athole, noblemen who stood in opposition to each other in claiming the title of the leader of the Jacobite interests. If these two great men were to be estimated according to their fidelity to the cause which they had espoused, their pretensions were tolerably equal, for neither of them could lay much claim to the honour due to political consistency. The conduct of Athole during the Revolution had been totally adverse to the royal interest; and that of the Duke of Hamilton, on his part, though affecting to act as head of the opposition to the Union, was such as to induce some suspicion that he was in league with the Government; since, whenever a decisive stand was to be made, Hamilton was sure to find some reason, better or worse, to avoid coming to extremities with the opposite party. Notwithstanding such repeated acts or defection on the part of these great dukes, their rank, talents, and the reliance on their general sincerity in the Jacobite cause, occasioned men of that party to attach themselves as partisans to one or other of them. It was natural that, generally speaking, men should choose for their leader the most influential person in whose neighbourhood they themselves resided or had their property; and thus the Highland Jacobites beyond the Tay rallied under the Duke of Athole; those of the south and west, under the Duke of Hamilton. From this it also followed, that; the two divisions of the same faction, being of different provinces, and in different circumstances, held separate opinions as to the course to be pursued in the intended restoration.
The northern Jacobites, who had more power of raising men, and less of levying money, than those of the south, were for rushing at once into war without any delay, or stipulation of foreign assistance; and without further aid than their own good hearts and ready swords, expressed themselves determined to place on the throne him whom they termed the lawful heir.
When Hooke entered into correspondence with this class of the Jacobite party, he found it easy to induce them to dispense with any special or precise stipulations concerning the amount of the succours to be furnished by France, whether in the shape of arms, money, or auxiliaries, so soon as he represented to them that any specific negotiation of this kind would be indelicate and unhandsome to the King of France, and probably diminish his inclination to serve the Chevalier de St George. On this point of pretended delicacy were these poor gentlemen induced to pledge themselves to risks likely to prove fatal to themselves, their rank, and their posterity, without any of the reasonable precautions which were absolutely necessary to save them from destruction.
But when the Duke of Hamilton (by his Secretary), Lord Kilsythe, Lockhart of Carnwath, Cochrane of Kilmaronock, and other leaders among the Jacobites of the west, had a conference with Colonel Hooke, their answers were of a different tenor. They thought that to render the plan of insurrection at all feasible, there should be a distinct engagement on the part of the King of France, to send over the Chevalier de St George to Scotland, with an auxiliary army of ten, or, at the very least, of eight thousand men. Colonel Hooke used very haughty language in answer to this demand, which he termed a “ presuming to give advice to Louis XIV. how to manage his own affairs; “ as if it had not been the business of the Jacobites themselves to learn to what extent they were to expect support, before staking their lands and lives in so dangerous an enterprise.
The extent of Colonel Hooke’s success was obtaining a memorial, signed by ten lords and chiefs, acting in the name, as they state, of the bulk of the nation, but particularly of thirty persons of distinction, from whom they had special mandates, in which paper they agreed that upon the arrival of the Chevalier de St George, they would make him master of Scotland, which was entirely in his interest, and immediately thereafter proceed to raise an army of twenty-five thousand foot, and five thousand horse. With this force they proposed to march into England, seize upon Newcastle, and distress the City of London by interrupting the coal trade. They stated their hope that the King would send with the Chevalier an auxiliary army of at least five thousand men, some officers, and a general of high rank, such as the Scottish nobles would not scruple to obey. The Duke of Berwick, a natural son of the late king, and a general of first-rate talent, was particularly fixed upon. They also complained of a want of field-pieces, battering-cannon, and arms of every kind, and stated their desire of a supply. And lastly, they dwelt upon the need they had of a subsidy of six hundred thousand livres, to enable them to begin the war. But they stated these in the shape of humble requests, rather than demands or conditions, and submitted themselves in the same memorial to any modification or alteration of the terms, which might render them more acceptable to King Louis. Thus Hooke made good the important point in his instructions, which enjoined him to take the Scottish Jacobites bound as far as possible to the King of France, while he should on no account enter into any negotiations which might bind his Majesty to any counter-stipulations. Louis showed considerable address in playing this game, as it is vulgarly called, of Fast and Loose, giving every reason to conclude that his ministers, if not the sovereign himself, looked less upon the invasion of Scotland as the means of effecting a counter-revolution, than in the light of a diversion, which would oblige the British to withdraw a large proportion of the troops which they employed in Flanders, and thus obtain a superiority for France on the general theatre of war. With this purpose, and to take the chance, doubtless, of fortunate events, and the generally discontented state of Scotland, the French court received and discussed at their leisure the prodigal offer of the Scottish Jacobites.
At length, after many delays, the French monarch actually determined upon making an effort. It was resolved to send to Scotland the heir of the ancient kings of that country, with a body of about five or six thousand men, being the force thought necessary by the faction of Athole — that of Hamilton having demanded eight thousand men at the very least.
It was agreed that the Chevalier de St George should embark at Dunkirk with this little army, and that the fleet should be placed under the command of the Comte de Forbin, who had distinguished himself by several naval exploits. When the plan was communicated by Monsieur de Chamillard, then minister for naval affairs, the commodore stated numerous objections to throwing so large a force ashore on the naked beach, without being assured of possessing a single harbour, or fortified place, which might serve them for a defence against the troops which the English Government would presently despatch against them. “ If,” pursued Forbin, “ you have five thousand troops to throw away on a desperate expedition, give me the command of them; I will embark them in shallops and light vessels, and I will surprise Amsterdam, and, by destroying the commerce of the Dutch capital, take away all means and desire on the part of the United Provinces to continue the war.”-” Let us have no inure of this,” replied the Minister; “ you are called upon to execute the King’s commands, not to discuss them. His Majesty has promised to the King and Queen Dowager of England (the Chevalier de St George and Mary d’Este) that he is to give them the stipulated assistance, and you are honoured with the task of fulfilling his royal word.” To hear was to obey, and the Comte de Forbin set himself about the execution of the design intrusted to him; but with a secret reluctance, which boded ill for the expedition, since, in bold undertakings, success is chiefly insured by the zeal, confidence, and hearty cooperation of those to whom the execution is committed. Forbin was so far from being satisfied with the commission assigned him, that he started a thousand difficulties and obstacles, all of which he was about to repeat to the Monarch himself in a private interview, when Louis, observing the turn of his conversation, cut his restive admiral short by telling him, that he was busy at that moment, and wished him a good voyage.
The commander of the land forces was the Comte de Gasse who afterwards bore the title of Marechal de Matignon. Twelve battalions were embarked on board of eight ships of the line and twenty-four frigates, besides transports and shallops for disembarkation. The King of France displayed his magnificence, by supplying the Chevalier de St George with a royal wardrobe, services of gold and silver plate, rich liveries for his attendants, splendid uniforms fur his guards, and all external appurtenances befitting the rank of a sovereign prince. At parting, Louis bestowed on his guest a sword, having its hilt set with diamonds, and, with that felicity of compliment which was natural to him above all other princes, expressed, as the best wish he could bestow upon his departing friend, his hope that they might never meet again. It was ominous that Louis used the same turn of courtesy in bidding adieu to the Chevalier’s father, previous to the battle of La Hogue. The Chevalier departed for Dunkirk, and embarked the troops; and thus far all had been conducted with such perfect secrecy, that England was totally unaware of the attempt which was meditated. But an accident at the same time retarded the enterprise, and made it public. This was the illness of the Chevalier de St George, who was seized with the measles. It could then no longer remain a secret that he was lying sick in Dunkirk, with the purpose of heading an expedition, for which the troops were already embarked, It was scarcely possible to imagine a country more unprepared for such an attack than England, unless it were Scotland. The great majority of the English army were then in Flanders. There only remained within the kingdom five thousand men, and these chiefly new levies. The situation of Scotland was still more defenceless. Edinburgh castle was alike unfurnished with garrison, artillery, ammunition, and stores. There were not in the country above two thousand regular soldiers, and these were Scottish regiments, whose fidelity was very little to be reckoned upon, if there should, as was probable, be a general insurrection of their countrymen. The panic in London was great, at court, in camp, and in city: there was also an unprecedented run on the Bank, which, unless that great national institution had been supported by an association of wealthy British and foreign merchants, must have given a severe shock to public credit. The consternation was the more overwhelming, that the great men in England were jealous of each other, and, not believing that the Chevalier would have ventured over upon the encouragement of the Scottish nation only, suspected the existence of some general conspiracy, the explosion of which would take place in England. Amid the wide-spreading alarm, active measures were taken to avert the danger. The few regiments which were in South Britain were directed to march for Scotland in all haste. Advices were sent to Flanders, to recall some of the British troops there for the more pressing service at home. General Cadogan, with ten battalions, took shipping in Holland, and actually sailed for Tynemouth. But even amongst these there were troops which could not be trusted. The Earl of Orkney’s Highland regiment, and that which is called the Scotch fusileers, are said to have declared they would never use their swords against their country in an English quarrel. It must be added, that the arrival of this succour was remote and precarious. But England had a readier and more certain resource in the superiority of her navy. With the most active exertions a fleet of forty sail of the line was assembled and put to sea, and, ere the French squadron commanded by Forbin had sailed, they beheld this mighty fleet before Dunkirk, on the 28th of February, 1708. The Comte de Forbin, upon this formidable apparition, despatched letters to Paris for instructions, having no doubt of receiving orders, in consequence, to disembark the troops, and postpone the expedition. Such an answer arrived accordingly; but while Forbin was preparing, on the 14th March, to carry it into execution, the English fleet was driven off the blockade by stress of weather; which news having soon reached the court, positive orders came, that at all risks the invading squadron should proceed to sea.
They sailed accordingly on 17th March from the roads of Dunkirk; and now not a little depended on the accidental circumstance of wind and tide, as these should be favourable to the French or English fleets. The elements were adverse to the French. They had no sooner left Dunkirk roads than the wind became contrary, and the squadron was driven into the roadstead called Newport-pits, from which place they could not stir fur the space of two days, when, the wind again changing, they set sail for Scotland with a favourable breeze. The Comte de Forbin and his squadron arrived in the entrance of the frith of Forth, sailed as high up as the point of Crail, on the coast of Fife, and dropped anchor there, with the purpose of running up the frith as far as the vicinity of Edinburgh on the next day, and there disembarking the Chevalier de St George, Marechal Matignon, and his troops. In the mean time, they showed signals, fired guns, and endeavoured to call the attention of their friends, whom they expected to welcome them ashore.
None of these signals were returned from the land; but they were answered from the sea in a manner as unexpected as it was unpleasing. The report of five cannon, heard in the direction of the mouth of the frith, gave notice of the approach of Sir George Byng and the English fleet, which had sailed the instant their admiral learned that the Comte de Forbin had put to sea; and though the French had considerably the start of them, the British admiral contrived to enter the frith immediately after the French squadron. The dawn of morning showed the far superior force of the English fleet advancing up the frith, and threatening to intercept the French squadron in the narrow inlet of the sea into which they had ventured. The Chevalier de St George and his attendants demanded to be put on board a smaller vessel than that commanded by Monsieur de Forbin, with the purpose of disembarking at the ancient castle of Wemyss, on the Fife coast, belonging to the earl of the same name, a constant adherent of the Stewart family. This was at once the wisest and most manly course which he could have followed. But the son of James II. was doomed to learn how little freewill can be exercised by the prince who has placed himself under the protection of a powerful auxiliary. Monsieur de Forbin, after evading his request for some time, at length decidedly said to him —” Sire, by the orders of my royal master, I am directed to take the same precautions for the safety of your august person as for his Majesty’s own. This must be my chief care. You are at present in safety, and I will never consent to your being exposed in a ruinous chateau, in an open country, where a few hours might put you in the hands of your enemies. I am intrusted with your person; I am answerable for your safety with my head; I beseech you, therefore, to repose your confidence in me entirely, and to listen to no one else. All those who dare give you advice different from mine, are either traitors or cowards.” Having thus settled the Chevalier’s doubts in a manner savouring something of the roughness of his profession, the Comte de Forbin bore down on the English admiral, as if determined to fight his way through the fleet. But as Sir George Byng made signal for collecting his ships to meet the enemy, the Frenchman went off on another tack, and, taking advantage of the manoeuvre to avoid the English admiral, steered for the mouth of the frith. The English ships having been long at sea, were rather heavy sailers, while those of Forbin had been carefully selected and careened for this particular service. The pursuit of Byng was therefore in vain, excepting that the Elizabeth, a slow-sailing vessel of the French fleet, fell into his hands.
Admiral Byng, when the French escaped him, proceeded to Edinburgh to assist in the defence of the capital, in case of any movement of the Jacobites which might have endangered it. The Comte de Forbin, with his expedition, had, on the other hand, the power of choosing among all the ports on the north-east coast of Scotland, from Dundee to Inverness, the one which circumstances might render most eligible for the purpose of disembarking the Chevalier de St George and the French troops. But whether from his own want of cordiality in the object of the expedition, or whether, as was generally suspected by the Scottish Jacobites at the time, he had secret orders from his court which regulated his conduct, Forbin positively refused to put the disinherited prince, and the soldiers destined for his service, on shore at any part of the north of Scotland, although the Chevalier repeatedly required him to do so. The expedition returned to Dunkirk, from which it had been four weeks absent; the troops were put ashore and distributed in garrison, and the commanders hastened to court, each to excuse himself, and throw the blame of the failure upon the other. On the miscarriage of this intended invasion, the malecontents of Scotland felt that an opportunity was lost, which never might, and in fact never did, again present itself. The unanimity with which almost all the numerous sects and parties in Scotland were disposed to unite in any measure which could rid them of the Union, was so unusual, that it could not be expected to be of long duration in so factious a nation. Neither was it likely that the kingdom of Scotland would, after such a lesson, be again left by the English Government so ill provided for defence. Above all, it seemed probable that the vengeance of the Ministry would descend so heavily on the heads of those who had been foremost in expressing their good wishes to the cause of the Chevalier de St George, as might induce others to beware of following their example on future occasions.
During the brief period when the French fleet was known to be at sea, and the landing of the army on some part of the coast of Scotland was expected almost hourly, the depression of the few who adhered to the existing government was extreme. The Earl of Leven, commander-inchief of the Scottish forces, hurried down from England to take the command of two or three regiments, which were all that could be mustered for the defence of the capital, and, on his arrival, wrote to the Secretary of State that the Jacobites were in such numbers, and showed themselves so elated, that he scarce dared look them in the face as he walked the streets. On the approach of a fleet, the Earl drew up his army in hostile array on Leith Sands, as if he meant to withstand any attempt to land. But great was his relief, when the approaching vessels of war showed the flag of England, instead of France, and proved to be those of Sir George Byng, instead of the Comte de Forbin’s. When this important intelligence was publicly known, it was for the Jacobites in their turn to abate the haughty looks before which their enemies had quailed, and resume those which they wore as a suffering but submissive faction. The Jacobite gentlemen of Stirlingshire, in particular, had almost gone the length of rising in arms, or, to speak more properly, they had actually dune so, though no opportunity had occurred of corning to blows. They had now, therefore, reason to expect the utmost vengeance of Government.
This little band consisted of several men of wealth, influence, and property. Stirling of Keir, Seaton of Touch, Edmondstoun of Newton, Stirling of Carden, and others, assembled a gallant body of horse, and advanced towards Edinburgh, to be the first who should offer themselves for the service of the Chevalier de St George. Learning by the way the failure of the expedition, they dispersed themselves, and returned to their own homes. They were seized, however, thrown into prison, and threatened to be tried for high treason. The Duke of Hamilton, with that want of decision which gave his conduct an air of mysterious inconsistency, had left his seat of Kinniel to visit his estates in Lancashire, while the treaty concerning the French invasion was in dependence. He was overtaken on his journey by a friend, who came to apprise him, that all obstructions to the expedition being overcome, it might be with certainty expected on the coast in the middle of March. The Duke seemed much embarrassed, and declared to Lockhart or Carnwath, that he would joyfully return, were it not that he foresaw that his giving such a mark of the interest he took in the arrival of the Chevalier, as that which stopping short on a journey, and returning to Scotland on the first news that he was expected, must necessarily imply, would certainly determine the Government to arrest him on suspicion. But his Grace pledged himself, that when he should learn by express that the French were actually arrived, he would return to Scotland in spite of all opposition, and rendezvous at Dumfries, where Mr Lockhart should meet him with the insurgents of Lanarkshire, the district in which both their interests lay.
The Duke had scarcely arrived at his house of Ashton, in Lancashire, when he was arrested as a auspicious person, and was still in the custody of the messenger when he received the intelligence that the French armament had actually set sail. Even this he did not conceive a fit time to declare himself, but solemnly protested, that so soon as he should learn that the Chevalier had actually landed, he would rid himself of the officer in whose custody he was, and set off for Scotland at the head of forty horse, to live or die in his service. As the Chevalier never set foot ashore, we have no means of knowing whether the Duke of Hamilton would have fulfilled his promise, which Mr Lockhart seems to have considered as candidly and sincerely given, or have had recourse to some evasion, as upon other critical occasions.
The Government, as is usual in such cases, were strict in investigating the cause of the conspiracy, and menacing those who had encouraged it, in a proportion corresponding to the alarm into which they had been thrown. A great many of the Scottish nobility and gentry were arrested on suspicion, secured in prisons and strong fortresses in Scotland, or sent to London in a kind of triumph, on account of the encouragement they were supposed to have given to the invasion.
The Stirlingshire gentlemen, who had actually taken arms and embodied themselves, were marked out as the first victims, and were accordingly sent back to Scotland, to be tried in the country where they had committed the crime. They met more favourable judges than was perhaps to have been expected.
Being brought to trial before the High Court or Justiciary, several witnesses were examined, who had seen the gentlemen assembled together in a body, but no one had remarked any circumstance which gave them the character of a military force. They bad arms, Indeed, but few gentlemen of that day stirred abroad without sword and pistol. No one had heard any treasonable conversation, or avowal of a treasonable purpose. The jury, therefore, found the crime was Not Proved against them — a verdict which, by the Scottish law, is equivalent in its effects to one of Not Guilty, but which is applied to those cases in which the accused persons are clouded with such a shade of suspicion as renders their guilt probable in the eyes of the jury, though the accuser has failed to make it good by proof. Their trial took place on the 22d November, 1708.
A short traditional story will serve to explain the cause of their acquittal. It is said, the Laird of Keir was riding joyfully home, with his butler in attendance, who had been one of the evidence produced against him on the trial, but who had, upon examination, forgot every word concerning the matter which could possibly prejudice his master. Keir could not help expressing some surprise to the man at the extraordinary shortness of memory which he had shown on particular questions being put to him. “ I understand what your honour means very well,” said the domestic coolly, “ but my mind was made up rather to trust my own soul to the mercy of Heaven than your honour’s body to the tender compassion of the Whigs.” This tale carries its own commentary. Having failed to convict conspirators who had acted so openly, the Government found it would be hopeless to proceed against those who had been arrested on suspicion only. This body included many noblemen; and gentry of the first rank, believed to entertain Jacobite sentiments. The Duke of Gordon, the Marquis of Huntly, the Earls Seaforth, Errol, Nithsdale, Marischal, and Murray; Lords Stormont, Kilsythe, Drummond, Nairne, Belhaven, and Sinclair, besides many gentlemen of fortune and influence, were all confined in the Tower, or other state prisons. The Duke of Hamilton is supposed to have been successful in making interest with the Whigs for their release, his Grace proposing, in return, to give the Ministers the advantage of his interest, and that of his friends, upon future elections. The prisoners were accordingly dismissed on finding bail.
The government, however, conceived that the failure to convict the Stirlingshire gentlemen accused of high treason (of which they were certainly guilty), arose less from the reluctance of witnesses to bear testimony against them, than in advantages afforded to them by the uncertain and general provisions of the Scottish statutes in cases of treason. They proposed to remedy this by abrogating the Scottish law, and introducing that of England in its stead, and ordaining that treasons committed in Scotland should be tried and decided in what is technically called a Commission of Oyer and Terminer, i.e. a Court of Commissioners appointed for hearing and deciding a particular cause, or set of causes. This, it must be noticed, contained an important advantage to the Government, since the case was taken from under the cognizance of the ordinary courts of justice, and intrusted to commissioners named for the special occasion, who must, of course, be chosen from men friendly to Government, awake to the alarm arising from any attack upon it, and, consequently, likely to be somewhat prejudiced against the parties brought before them, as accomplices in such an enterprise. On the other hand, the new law, with the precision required by the English system, was decided and distinct in settling certain forms of procedure, which, in Scotland, being left to the arbitrary pleasure of the judges, gave them an opportunity of favouring or distressing the parties brought before them. This was a dangerous latitude upon political trials, where every man, whatever might be his rank, or general character for impartiality, was led to take a strong part on one side or other of the question out of which the criminal interest had arisen.
Another part of the proposed act was, however, a noble boon to Scotland. It freed the country for ever from the atrocious powers of examination under torture. This, as we have seen, was currently practised during the reigns of Charles II. and his brother James; and it had been put in force, though unfrequently, after the Revolution. A greater injustice cannot be imagined, than the practice of torture to extort confession, although it once made a part of judicial procedure in every country of Europe, and is still resorted to in some continental nations. It is easy to conceive, that a timid man, or one peculiarly sensible to pain, will confess crimes of which he is innocent, to avoid or escape from the infliction of extreme torture; while a villain, of a hardy disposition of mind and body, will endure the worst torment that can be imposed on him, rather than avow offences of which he is actually guilty.
The laws of both countries conformed but too well in adding to the punishment of high treason certain aggravations, which, while they must disgust and terrify the humane and civilized, tend only to brutalize the vulgar and unthinking part of the spectators, and to familiarize them with acts of cruelty. On this the laws of England were painfully minute. They enjoined that the traitor should be cut down from the gibbet before life and sensibility to pain were extinguished — that while half-strangled, his heart should be torn from his breast and thrown into the fire-his body opened and embowelled, and,-omitting other more shamefully savage injunctions,-that his corpse should be quartered, and exposed upon bridges and city towers, and abandoned to the carrion crow and the eagle. Admitting that high treason, as it implies the destruction of the government under which we live, is the highest of all possible crimes, still the forfeiture of life, which it does, and ought to infer, is the highest punishment which our mortal state affords. All the butchery, therefore, which the former laws of England prescribed, only disgusts or hardens the heart of the spectator; while the apparatus of terror seldom affects the criminal, who has been generally led to commit the crime by some strong enthusiastic feeling, either implanted in him by education, or caught up from sympathy with others; and which, as it leads him to hazard life itself, is not subdued or daunted by the additional or protracted tortures, which can be added to the manner in which death is inflicted. Another penalty annexed to the crime of high treason, was the forfeiture of the estates of the criminal to the crown, to the disinheriting of his children, or natural heirs. There is something in this difficult to reconcile to moral feeling, since it may, in some degree, be termed visiting the crimes of he parents upon the children. It may be also alleged, that it is hard to forfeit and take away from the lawful line of succession property which may have been acquired by the talents and industry of the criminal’s forefathers, or, perhaps, by their meritorious services to the state. But, on the other hand, it must be considered, that there is something not unappropriate in the punishment of reducing to poverty the family of him, who by his attack on the state, might have wrought the ruin of thousands of families. Nor is it less to be admitted, that this branch of the punishment has a quality always Desirable — namely, a strong tendency to deter men from the crime. High treason is usually the offence of men of rank and wealth; at least such being the leaders in civil war, are usually selected for punishment. It is natural that such individuals, however willingly they may venture their own persons, should be apt to hesitate when the enterprise involves all the fortunes of their house, name, rank, and other advantages, which, having received perhaps from a long train of ancestors, they are naturally and laudably desirous to transmit to their posterity.
The proposal for extending the treason law of England into North Britain, was introduced under the title of a bill for further completing and perfecting the Union. Many of the Scottish members alleged, on the contrary, that the proposed enactments were rather a violation of the national treaty, since the bill was directly calculated to encroach on the powers of the Court of Justiciary, which had been guaranteed by the Union. This objection was lessened at least by an amendment on the bill, which declared, that three of the Judges of Justiciary (so the Criminal Court of Scotland is termed) should be always included in any Commission of Oyer and Terminer. The bill passed into a statute, and has been ever since the law of the land. Thus was the Union completed. We shall next endeavour to show, in the phrase of mechanics, how this new machine worked; or, in other words, how this great alteration on the internal Constitution of Great Britain answered the expectations of those by whom the changes were introduced.
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