*" David Haxton of Rathillet was condemned, July 30th, and executed the same day in a most severe manner." 1 Fountainball, 112.

to the assyse house, wher having reasoned, and this thretieth day of July, instant, betwixt voted upon the poynts and articles of the ly-three and fyve o'clock in the afternoon, and orbell and probation, they re-entered againe in court, and returned ther Verdict in presence of the saids lords, whereof the tenor followes." At Edinburgh the 30 of July 1680. The persons constitut and sworne assysers, be the lords of his majesties justiciarie to pass upon the tyrall "There has been (says Mr. Hume, vol. 2, of David Hackstoun of Rathilet, for severall p. 344 of his Commentaries), a variation of horrid and treasonable crymes particularly practice, in the article of naming a time for contained in his indytment, they be the plurali execution of the Doom. It is only in the course tie of voices choised sir Patrick Threpland of the present century, (the eighteenth century Chancellar and the said Mr. William Nimmo is meant) that any special order on this head Clerk to the assyse, and thereafter having con- has come to be a necessary article of the seasidered the lybell and contents thereof, with tence: for, according to the older style, the the depositions of the wholl witnesses upon the time was left quite at large, to the will of the respective articles of the lybell, and being ful-inferior magistrate; and it appears that not unlie and ryplie adwised theranent, doe unani- commonly this direction had been carried the mouslie, and in one voice, be the mouth of length of executing the sentence on the very sir Patrick Threpland, Chancellar, find the day that it was given." [According to a note pannal, David Hackstoun, of Ratbillet, guilty 24 Jan. 1624, in the MS. Abridgement of the of being in the rebellion, against his majesties books of Adjournal, the ordinary course was to authoritie, and at the conflict at Ayres Mosse, proceed to execution on the day after the senbetwixt his majesties forces, and the rebells tence. I find this entry in the Diary of Rodefate ther, and for owneing the treasonable bert Birrell, Burgess of Edinburgh, who seems papers mentioned in the dittay, and thereby of to have been an exact observer of incidents of this the treasonable contryveing the destruction of nature: The 8th of Februar (1597) Johne his majesties lyff, authoritie, and government, Windiezettes, Johne Moscraip, Alexander and also of his treasonablie declining his ma- Lowrie, John Halliday, and captain James jesties authoritie, and the authoritie of his ma- 'Lowrie, all hangitt at the Crosse, for counjesties privie councill, and justice court, and 'terfeiting fals wreittis, quilk was grate pitie also of his being art and part of that horrid, to sie.' It appears from the book of Adbarbarous, and sacralegious murder committed journal, that their sentence had been proon the person of the late arch-bishop of St. nounced that same day.] "This happened in Andrews, primat of all Scotland, upon the 3d the case of lady Glamis, July 17th 1537, of of May, 1679 years. Hackstoun of Rathillet, in 1680, of Baillie of Jarvieswood, in 1684, and Richard Rumbold, in 1685." [Sir Thomas Hope, in his Major Practices, makes mention of an act of council Efter oppining and reading of the whilk in 1604, against the sudden execution of senVerdict of assyse, the Lords Justice General, tence; but this ordinance, if in truth any such Justice Clerk, and Commissioners of Justi-was ever passed, does not seem to have been ciary therfor be the mouth of Adam Auld, Dempster of court, decerned and adjudged the body of the said David Hackstoun, of Rathillet, to be drawen upon ane hurdle backward, to the croce of Edinburgh, and ther upon ane high scaffold, erected a litle above the croce, to have his right hand struck off, and efter some tyme, to have his left hand struck off, and then to be hanged up and cut down alive, and his bowels taken out, and his heart to be shown to the people, by the hand of the hangman, and his heart and bowells to be burnt in presence of the people, in ane fyre prepared for that purpose, upon the scaffold, and afterwards, to have his head cut off, and his body devidit in four quarters, and his head to be affixt on the Nether Bowe, and one of his quarters with both his hands to be affixt atSt. Andrews, another quarter at Glasgow, the third at Leith, the fourth at Burnt-island, and that non presume to be mourning for him, nor he to have ane coffin, and that non be on the scaffold with him, but two baylies, four offieers, the executioner, and his servants, and this sentence to be put to execution against him,

Sic Subscribitur,

P. THREPLAND, Chancelar."

complied with in practice: and indeed it only enjoins to delay till next day, or longer, if the judge see cause. See Royston's notes, ad. p. 289.] Nay, by the express appointment of the law, a murderer taken in the fact, or redhand, as it is called, was to be tried and executed by the sheriff within three suns; and by the statute 1695, c. 4, this precipitation was only so far corrected, as the time of execution was now left to the discretion of the judge, not exceeding nine days after sentence. There are, however, obvious reasons in the situation of Scotland, a country so remote from the seat of mercy, not to mention other very powerful considerations, why a more definite rule ought to be prescribed on this head, and the unbappy convict be allowed a longer interval between his doom and execution. Yet no provision was made in this behalf, before the 11th of Geo. 1, when, among other salutary regulations, thrown into the statute of that year, for disarming the Highlands, it was ordered that no sentence of corporal pains should be executed within less than thirty days after its date, if pronounced to the southward of the Forth, nor

forfault, ammitted, and tint all and sundrie his lands, beretages, tacks, steadings, roumes,

possessions, goods and gear, whatsomever pertaining to him, to our soveraigne lord, to away the bier-trees from them. Upon this the women turned off some of their own plaids, folded them by their lengths, and put them under the coffins, and went on with them, till the merciless soldiers, after they had scattered those who were not carrying, came and took the plaids from them, and would not suffer them to carry the coffins to their graves, so they were set in the Alms-house near the High Church, and I think continued there till Mr. Welsh and some of their friends in a few days came and buried them."

hanging by his cautious tergiversing, he then openly owned and avowed the said paper as containing nothing but what they were bound to. The other two shifted, that if it was agreeable to the word of God, then they were for it; but being urged to give an instance where God's word allowed murder, they were silent; though they might have wrested Moses his killing the Egyptian, Phineas running Zimri and Cozbi through the body, Ehud's stabbing king Eglon, &c. but these were heroick impulses, expressly allowed by God, and they were magistrates, at least the two first. The assize found them guilty; and they were And in another place speaking of the outcondemned about three o'clock, and were im-rageous cruelties of the soldiery in the year mediately carried down to the Gallowlee between Leith and Edinburgh, and hanged there before five at night. It is strange to find this obstinacy have countenancers; for good black coffins followed them down Leith Wynd, and women privily in the night stole their bodies from under the gibbet, and carried them to the gate of the Grayfriar's Church-yard, with a design to have buried them there; but the privy council ordained their corps to be drawn back again to the Gallowlee, and the wright who made their coffins, to be inquired after and apprehended, that he might discover who had employed him; but the magistrates of Edinburgh commonly furnish chests to the poor malefactors.On this occasion the 23d act of parliament 1685 was made."

1685, he says, that on May 4th, "Peter Gillies and John Bryce were carried down to Mauchlin, and, with some others, were examined by lieutenant-general Drummond, and an Assize was called of fifteen of the soldiers, and an Indictment was given them, May 5th. It may be, some of my readers may desire to know the form used in those summar judiciary courts; and therefore, it being short, is inserted.

Peter Gillies, in Muirend-side,

John Bryce, in West Calder.

You and ilk ane of you are indicted, that, contrary the laws both divine and humane, the laws and practices of this realm, and several acts of parliament, ordaining an humble submission, by all persons, to kingly power and authority, and an acknowledg ment of their just power and greatness, and of their full consent to the laws and acts in their jurisdictions, and giving sufficient demonstrations of their loyalty, and adherence to their prince, as their head and sovereign, in all things and cases, when required; and the opposers thereof, and refusers to give sufficient testimony of their loyalty and consent, as aforesaid, being justly to be reputed enemies, and not friends, rebels and not subjects, and, by the same laws and ordinations, are to be cut off from other loyal, obedient, true, conforming subjects.

The practice of "warring with the dead" seems to have been extensively adopted in Scotland in these times. Wodrow, vol. 2, p. 48, | after relating the discomfiture in Glasgow, of the conventiclers, proceeds, “When they are fairly marched off, the king's forces came out of their barricadoe. Great was the inhumanity of the soldiers to the dead bodies left in the streets. I find some papers asserting that Claverhouse and some of the officers gave orders that none should bury them, but that the butchers dogs should be suffered to eat them. I can scarce prevail with myself to think there were any such orders given; but it is certain that the seven dead bodies lay upon the street from eleven of the clock till night came on, and the common soldiers would not permit them to be carried into houses, yea, actually hindered by force people who weregiance to the king, bave not only, contrary to

going about this act of humanity: yea, which further discovers their naughty barbarity, when in the evening they were taken into houses, and dressed up for their burial, the soldiers came in and turned the bodies out of their dead clothes, and went off with the linens.

6

Yet true it is and of verity, that you, in a' manifest contempt of those laws, though living under a gracious prince and sovereign, having cast off all fear of God, duty and alle.

the word of God; and all law and equity, most traiterously and impiously shaken off alf love and obedience to kingly power by a long time homologating with the principles of those rebellious traitors, and blasphemers of God and the king, joyning with them in their And when a kind of connivance was given wicked courses and practices, wanting nothing to bury them, none durst appear to do this last but an opportunity to murder and assassinate office but women; yea, when these were car-his majesty's subjects of the contrary opirying them up the street to their burial-place,nion; but also openly and avowedly disownsuch was the unparalleled rudeness of the sol-ing the king his just authority and governdiers, that they attacked the women, cut the ment, adhered to the covenant, owning and mort cloths with their swords, and forced approving rising in arms against the king,

remaine perpetuallie with his hyness, in pro-a pully, and, when choaked a little, let down pertie, in tyme coming, which was pronunced

317. Trial of DONALD CARGILL, WALTER SMITH, JAMES BOIG, WILLIAM THOMPSON, and WILLIAM COOTHILL, for Treason: 33 CHARLES II. A. D. 1681. [Now first printed from the Records of Justiciary in Edinburgh.]

the joyning and assembleing togither in armes, without, and contrair to his majesties royall command, warrand, and authoritie, and the abaiting, assisting, recepting, intercomoning,

to be all the while as in an enthusiastical rapture, and insensible of what was done to him. When his hands were cut off, he asked, like one unconcerned, if his feet must be cut off likewise: and he had so strong a heart, that notwithstanding all the loss of blood by his wounds, and the cutting off his hands, yet when he was hanged up, and his heart cut out, it continued to palpitate some time after it was on the hangman's knife, as some eyewitnesses assured me. Cargill, and many others of that mad sect, both men and women, suffered with an obstinacy that was so particular, that though the duke sent the offer of pardon to them on the scaffold, if they would only say God bless the king, it was refused with great neglect: one of them, a woman, said very calmly, she was sure God would not bless him, and that therefore she would not take God's name in vain: another said more sullenly, that she would not worship that idol, nor acknowledge any other king but Christ: and so both were hanged. About fifteen or sixteen died under this delusion, which seemed to be a sort of madness: for they never attempted any thing against any person; only they seemed glad to suffer for their opinions. The Duke stopt that prosecution, and appointed them to be put in a house of correction, and to be kept at hard labour.” 1 Burnet, 511.

Of this mitigatory interposition by the Duke, Mr. Laing intimates a doubt: "No example," says he, "of the fact exists: on the contrary, executions for private opinion continued to multiply during his whole administration and reign. It is asserted, too, by the same author, that the Duke indulged, without emotion, in contemplating the torture of State Prisoners as a curious experiment, while other counsellors recoiled from the scene; and on one occasion, it is certain, that he assisted, from choice, when Spreull (see the Case in this Volume, p. 725), was twice exposed to the question almost without intermission." Hist. vol. 4, p. 111. See also a subsequent Note to this Case.

and keeping correspondence with such rebells, and supplieing of them with levies of men, horse, money, armes, and furnishing them with meat, drink, powder, ball, are most horment of these now under ther hand, than in many processes before and after this, when persons were taken in actual resistance, upon the back of a kind of declaration of war against the king; then the prelates and persecutors triumphed in the necessity and justice of cutting them off, and yet it was but a very few who were thus taken, two or three at Airs-moss, who were attacked, and obliged to defend themselves; but the greatest part who suffered now were such who were discovered by their bribed informers, and alledged to have been at field-meetings; and when brought before them at Edinburgh, a confession was extorted by boots and thumbkins from some of them, and the rest, when brought before the justiciary, council, or committees of it, were ensnared by captious questions, upon subjects common people could not be supposed to understand; and upon their answers they were condemned and executed.

thority, wherein I have already declined to "True it is, they did disown the king's anvindicate them: but the reader who may be a stranger to those times, would know, that by owning the authority, the poor people understood a virtual approbation of all that was done by the king since his restoration, the rescinding of the excellent laws and constitution we once enjoyed in Scotland, and the severities God following thereupon. And this was in the against, and the persecution of the people of our country women and men now put to death, a matter of opinion and conscience inisinformed indeed by the unwarrantable expressions of times, and, it may be, likewise by some unsome who were soured by the rigidity of the guarded expressions they might have heard at some sermons in the fields since Bothwel; but then it is certain, this was such a misinformation and ignorance of facts, as they could scarce ever be brought from under; and indeed, except in an instance or two, no care was taken to council to the justiciary, from them to the priinform them, but they were hurried from the son, and in a few hours into eternity.

Wodrow, Book 3, chap. 5, sec. 4, says: "Upon the last year [1680] I gave some "Mean while the government could be in no manner of hazard from a handful of those account of the condemnation and execu- people, and if any thing of this nature could tion of severals of Mr. Cameron and Mr. Car-breed disturbance, it was the barbarous extregil's followers, for disowning of the king, and bearing them at Field-conventicles; and upon this section I shall put together the accounts of near twenty more, with Mr. Cargil himself, who suffered this year, just in the order of time they fell out.

meties they ran to with such of them as fell into their hands: but it was easy to have secured the peace against ten times their number, by gentler methods, than butchering so many scores of otherwise serious and religious permeasures, now taken, did very much lessen sous; this with many other unaccountable the king, sully his reign, and made the administration burdensome and grievous to multi

"And when entering upon this melancholy subject, I cannot but regret the cunning and unprecedented severity of the persecutors, with a great many of these people who came be-tudes of his best subjects. fore them. It is certain, the managers had more to say in their own defence as to the treat

mood, would offer the country people their "Sometimes indeed the council in their good