Scotland, where he was put on trial before a jury in the High Court of Justiciary in Edinburgh. All objections having been repelled by the trial judge, the statement which Spence had given under torture was read to the jury. Baillie was convicted the next day, and the sentence of death that was passed on him was executed that afternoon. There is a warning here for us. “Extraordinary rendition”, as it is known today, is not new. It was being practised in England in the 17th century. 108. Baron Hume, Commentaries on the Law of Scotland respecting Crimes (Edinburgh, 1844), vol ii, p 324, described the use of torture for the purpose of discovering transgressors as a barbarous engine. So it was. It had increasingly come to be recognised that there was a level beyond which, however great the threat and however imminent its realisation, resort to this means of extracting information was unacceptable. The need of the authorities to resort to extreme measures for their own protection had, of course, disappeared with the arrival of the period of stability that came with the ending of the Stuart dynasty. But one can detect in Hume’s language a revulsion against its use which would have certainly been voiced by the judges of his time, had it been necessary for them to do so. 109. The threat of rebellion and revolution having disappeared, the developing common law did not find it necessary to grapple with the question whether statements obtained by the use of torture should continue to be admissible against third parties in any proceedings as evidence. There is no doubt that they would be caught today by the rule that evidence of the facts referred to in a statement made by a third party, however that statement was obtained, is hearsay: Teper v The Queen [1952] AC 480, 486, per Lord Normand. Alison, Principles and Practice of the Criminal Law of Scotland (1833), vol ii, 510-11 states that hearsay is in general inadmissible evidence. He bases this proposition on the best evidence rule, and declares that the rule is “firmly established both in the Scotch and English law”. But we cannot be absolutely confident that judges in the latter part of the 19th century would have been prepared to rely on the hearsay rule to exclude such evidence. In R v Birmingham Overseers (1861) 1 B & S 763, 767, Cockburn CJ said: “People were formerly frightened out of their wits about admitting evidence, lest juries should go wrong. In modern times we admit the evidence, and discuss its weight.” -62-