Part 4

“Now, for himself, he has called some persons here to give an account of his reputation, and of his services done in the West Indies; and one of them says, about ten or twelve years he did good service there. Why, so he might and might have, and it is very like he had such reputation when the king trusted him with these commissions, else I believe he had never had them; so, that whatever he might have been so many years ago, that is not a matter to be insisted on now, but what he hath been since, and how he hath acted in this matter charged against him: so that, gentlemen, as to Mr. Kidd, I must leave to you, whether he is guilty of piracy or no. If you believe him guilty upon the evidence, you will find him so; if not, you will acquit him.

“Now, for the other prisoners, it is proved they were all concerned in taking and sharing the ship and goods in the indictment, yet their circumstances differ pretty much among themselves. There are three of them, that it has been made out to you, and owned by the king’s witnesses, that they were servants, Robert Lamley, William Jenkins, Richard Barlicorn. All these are made out to be servants, and you have had the indentures of two of them produced, and the king’s witnesses prove them so, and they were admitted to be servants. Now, gentlemen, there must go an intention of the mind, and a freedom of the will, to the committing of a felony or piracy. A pirate is not to be understood to be under constraint, but a free agent, for in this case the bare act will not make him guilty, unless the will make it so. Now a servant, it is true, if he go voluntarily, and have his proposition, he must be accounted a pirate, for then he acts upon his own account, and not by compulsion. And these persons, according to the evidence, received their part; but whether they accounted to their masters for their shares afterwards, yea or no, as they pretend, but make no proof of it, I must leave that to you; and therefore there is a consideration to be had of them: for if these men did go under the compulsion of their masters, to whom they were servants, and not voluntarily, and upon their own accounts, it may difference their case from others, who went and acted willingly in this matter, and upon their own accounts. So that as to those that were servants under the command of their masters, that were present with them, I must leave it to you, whether you will distinguish between them and the others, that were not servants, but free agents. It is true, that a servant is not bound to obey his master but in lawful things, which they say they thought this was, and that they knew not to the contrary, but that their masters acted according to the King’s commission; and therefore their case must be left to your consideration, whether you think them upon the whole matter guilty or no. If you believe them guilty, you will find them so; otherwise you will acquit them.

“For the other persons, some of them pretend they came in on his majesty’s proclamation, and for that you must consider the evidence, and take it altogether, and consider whether you are satisfied by what they have said or proved, that they have brought themselves within the benefit of the king’s favour by that proclamation. You have heard it read, and observed the qualifications and directions by it, and the terms upon which the pardon was promised, which are not made out to you, to be complied with by them; they may apply another way for the king’s mercy; this court must proceed according to the rules of law and justice: but then all of them hold on this; we were, say they, under the captain, and acted under him as their commander: and, gentlemen, so far as they acted under his lawful commands, and by virtue and in pursuance of his commissions, it must be admitted they were justifiable, and ought to be justified: but how far forth that hath been, the actions of their captain and their own will best make it appear. It is not contested, but that these men knew, and were sensible of what was done and acted, and did take part in it, and had the benefit of what was taken shared amongst them; and if the taking of this ship and goods was unlawful, then these men can claim no advantage by these commissions, because they had no authority by them to do what they did, and acted quite contrary to them. What had they to do to enter into such articles, and to act as they did? You must consider the evidence given here, according to the rules of the law; and if you are satisfied that they have knowingly and willfully been concerned or partaken with Captain Kidd in taking this ship, and dividing the goods, and that piratically and feloniously, then they will be guilty within this indictment. It is worthy of consideration what appears upon the evidence, that they met with one reputed to be a notorious pirate, called Culliford; he was esteemed an arch-pirate, and known to be so; yet this Captain Kidd that was commissioned to take pirates, instead of taking him, grows to such an intimacy with him, that he said he would have his soul lost before he would hurt him, or to that effect, and so they made presents one to another; and Captain Kidd left three of his men with him. Whilst men pursue their commissions they must be justified; but when they do things not authorised, or never acted by them, it is as if there had been no commission at all. I have distinguished the evidence as well as my memory serves me, and must leave it to you to determine upon the whole matter, who are guilty, and who are not. And such as you are satisfied to be guilty, you will find so, and such as you are not satisfied to be guilty you will acquit.”

The jury, after half an hour’s consultation, brought in all the prisoners guilty, except Lamley, Jenkins, and Barlicorn, whom, as being servants, they acquitted.

A second trial of the same ten persons for a further act of piracy had the same result. Further indictments were gone into, in which men of the name of Culliford (Captain Culliford, the pirate already mentioned), Hickman, and Eldridge were included. Culliford and Hickman pleaded guilty, and Eldridge was found guilty. The result of the whole proceedings was, that a law point being raised in favour of Culliford, judgment against him was respited, and Dr. Oxenden pronounced sentence of death upon Kidd, Churchill, Howe, Loff, Parrot, Owens, Mullins, Hickman, and Eldridge.

Kidd was executed with one of his companions, Darby Mullins, an Irishman, at Execution Dock, on the 23rd of May, 1701. After Kidd had been tied up to the gallows, the rope broke, and he fell to the ground; but being immediately tied up again, the Ordinary, who had before exhorted him, desired to speak with him once more; and on this second application, entreated him to make the most useful care of the few farther moments thus providentially allotted him for the final preparation of his soul to meet its important change. These exhortations seemed to have the wished-for effect; and he was left, professing his charity to all the world, and his hopes of salvation through the merits of his Redeemer. Some others of the men sentenced were also executed.

SOLDIERS AND CIVILIANS IN THE TIME OF WILLIAM III.

The years 1693, 1694, and 1695, formed the gloomiest period of that troubled time which followed the Revolution of 1688. King William III., and Queen Mary, the latter of whom was to die before the last days of 1694 closed in, had, no doubt, firm possession of the throne, but, as regarded a great portion of their subjects, it was but an armed possession. Military force everywhere restrained the suppressed wrath of the Jacobites, and even was of use to check the puritanical dissatisfaction of those ultra Whigs who thought the Government had not gone far enough in the cause of revolution. Soldiers, garrisons, and forts full of troops so abounded throughout the length and breadth of the land, that the new constitutional monarchy had curiously all the aspect of a military despotism. Everywhere, too, King William’s forces were then unpopular. The defeats of Cape St. Vincent, Landen, Marsaglia, and Brest had lessened the public faith—even the faith of those who supported the revolution—in the effective strength of the British soldiers and sailors. Discontent prevailed much throughout England, and plot upon plot was formed against the very life of the monarch. But if this was the state of things in England, it was far worse in Scotland. There the king’s troops were actually objects of extreme hate and execration with the great mass of the populace. The foul massacre of Glencoe, one of the worst of crimes for a Government to commit, had enraged the people of Scotland, and had brought undue weight against the reforming and would-be-salutary rule of King William. His troops, wherever garrisoned in the Scottish territory, were constantly insulted, and frequently violently assaulted. Conflicts of the most deadly kind occurred between them, and the civilians, not only of the lower class, but of better station and official position. The frequent fatal results gave rise to many life-and-death criminal trials; and from these I take the two following, which made a sensation at the time, and are recorded by Arnot; they are peculiarly characteristic of the terrible discord that existed.

The first of these trials, which occurred in December, 1694, was that of John Gillespie, merchant in Glasgow; John Anderson of Dovehill; and Robert Stevenson, glazier in Glasgow, for the murder of Major James Menzies. The unfortunate major, the subject of the judicial investigation, was clearly a person of importance, for, by the prosecution, it appears that he was related to the eminent family of Fletcher of Salton, in Haddingtonshire. The prisoners, in effect, were proceeded against at the triple instance of William Fletcher (afterwards himself of Salton), brother to the Laird of Salton (the celebrated statesman and writer, Andrew Fletcher), nearest of kin to the deceased; of Lieutenant-Colonel Hume, for the interest of his majesty’s forces, and of his majesty’s Advocate. It was charged in the indictment, that the prisoners having conceived mortal hatred at the deceased, did, on the 19th of October preceding, enter a garden upon the lands of Rainfield, where they understood the deceased was walking, and, upon seeing him, they, or one or other of them, did discharge guns and pistols at him, and also struck him a blow on the head, which fractured his skull, of one or other of which wounds he instantly expired—or, at least, they were guilty of art and part of this murder.

The defence stated for the prisoners was, that, in October last, in absence of the colonel and lieutenant-colonel, Lord Lindesay’s regiment, then quartered at Glasgow, was commanded by the deceased, Major Menzies; that the major summarily apprehended several inhabitants, burgesses of Glasgow, and kept them in custody of the military on pretence of their being deserters, but who were really not such; that complaint having been made to the magistrates by the persons confined, they desired the major to bring those persons before them, that the complaint might be tried conform to the act of Privy Council, 16th December, 1692, but the major absolutely refused to comply with their desire. The magistrates issued a formal edict, requiring him to produce the complainers; but this also he treated with the most pointed contempt. Proceeding then with utmost gentleness, they demanded a conference, to which the major having consented, the provost, two of the baillies, and Mr. Robert Park, town clerk, met with Major Menzies, and three captains of his regiment, in the town clerk’s chamber. The conference began with the provost desiring of the major that the prisoners might be brought before them, and Mr. Park, the town clerk, in a very civil manner, joined in the request. Upon this, an altercation between the major and town clerk took place; the major gave him bad language, and struck him with a cane, he, the town clerk, having no weapon in his hand. On this they wrestled, and being separated by the company, and while the town clerk was held by Captain Jarvais, of Lord Lindesay’s regiment, the major drew his sword, and run the town clerk through the body, of which he died instantly. The major marched off sword in hand, repaired to the guard-house, ordered his men to charge their muskets, drew them up across the street, three file deep, and set them to guard the passes in order to favour his escape, mounted horse, and fled.

Upon this, Mr. Francis Montgomery, one of the lords of Privy Council, ordered such of the inhabitants as could be soonest got ready to pursue and apprehend the murderer. In obedience to this order, the three prisoners went in pursuit of the major, came to a garden at Rainfield, where they were informed he skulked. On coming up to him they charged him with the murder of the town clerk, and desired him to yield himself prisoner; but this he refused, and opposed them with a drawn sword, upon which he was killed. Various arguments in point of law were also offered for the prisoners, and much casuistry was likewise advanced for the prosecutors. These debates occupy fifty pages folio of the original criminal record.

The court sustained the indictment against the prisoners, as relevant to infer the pain of death. But they also sustained this defence as sufficient entirely to cast the indictment, viz., that they pursued the major by order of a privy councillor, or of the magistrates of Glasgow, proceeding upon the notoriety of the murder, unless the prosecutors should prove that the major offered to surrender before attacked by the prisoners. This again they sustained relevant to set aside the defence, in respect to such of the prisoners only as did actually kill or give command to kill the major, but by no means to infer art and part against any of the other prisoners, they being _versantes in licito_.

The proofs were as follow:—

Robert Pollock, younger, of Milnbourne, deposed: He was at Rainfield on the 19th of October last, where he saw the three prisoners, but none of them had arms except Dovehill, who had a carabine, but it was not he who killed the major, for the former was standing with the witness at the garden door when they heard the shot. Upon going up to the place, they saw the major lying on his back, dead, his face bleeding, and a drawn sword in his hand across his breast. Afterwards, when they came to Renfrew, he heard the prisoner (Gillespie) acknowledge he shot the major; but the witness did not see him have any fire-arms in his hand, nor did he see Gillespie either receive from or return any fire-arms to Dovehill. When Gillespie first acknowledged that he shot the major, he did not speak of the latter’s having made any resistance; but after he was taken into custody, he declared that, if he had not done the thing he did, the major would have run him through the body.

Peter Paterson, late baillie of Renfrew, went with the three prisoners into the garden of Rainfield the night Major Menzies was killed; it is uncertain whether all of the prisoners had arms, only that Dovehill had one or two pistols. He did not see Dovehill give a pistol to Gillespie; but, after the major was killed, saw Gillespie deliver a pistol to Dovehill, saying, “There is your pistol,” Dovehill and young Milnbourne, a former witness, stood at the garden-door, while the deponent going forward with the other two prisoners (Gillespie and Stevenson) came up with the major, and one of them said to the deponent, “Baillie, here is a man.” The man called out, “What is the matter, sir?” to which the witness answered, “There was a man slain in Glasgow; that the slayer was supposed to be skulking hereabout; and if you be the man, God Almighty forgive you.” The person replied, “It is none of your business.” One of the prisoners then called out, “Dovehill, here is the man.” The major cried with an oath, “What have the rascals to do with me?” immediately drew his sword, and advanced upon them in great rage. The deponent and the prisoners retreated. He then heard a shot, but knows not whether it came from Gillespie or Stevenson. When he returned, he saw the major lying on his back, dead, and his sword in his hand lying across his breast.

Captain Jarvais, of Lord Lindesay’s regiment, a witness adduced for the prisoners, was present at the conference between the Provost of Glasgow and Major Menzies. He heard the major call the town clerk “a fool,” and the clerk answered him, “he was but an ass.” Upon this the major struck the clerk over the head with his cane, and the clerk returned a very severe blow with his fist. The company separated them, and the major drew his sword, made a thrust at the clerk, who immediately cried out he was wounded, and clapped his hand on the wound; and as he was going to another room, the deponent saw the clerk fall and lie on the floor. The witness went to the guard-house, and found the major was fled. The clerk had no arms.

Simon Tennent, one of the baillies of Glasgow, heard the major call the town clerk “a fool,” and the town clerk called the major “an ass;” saw the major strike the former with his cane. The parties then grappled, and were separated, when the deponent saw the glance of a sword pointed towards the clerk, who immediately cried out, “A surgeon!” and died in about seven minutes. He was told by all the company it was the major who killed the clerk; and the latter, at the time of his death, had no arms, not even a staff, in his hand.

James Gemmill, jun., merchant in Glasgow, on the day Mr. Park was killed, saw the major come out of his, the town clerk’s chamber, in haste, wanting his wig, and his sword drawn; saw him wipe his sword with the flap of his coat and return it into its scabbard. Before the major could arrive at the guard-house, whither he was going, the deponent heard that the clerk was wounded, and then was told he was dead.

Captain Lindesay, of Lord Lindesay’s regiment, was present at the scuffle between Major Menzies and the town clerk; saw the major’s arm in the attitude of pushing with a sword; and immediately after the lounge the clerk cried he was wounded. The former left the room without his wig; the deponent took up the wig and followed, accompanying the major to the Gorballs, where he took horse and fled.

William Napier, provost of Glasgow, was in the town clerk’s chamber the day he was killed. Upon the notoriety of the murder and flight, he gave orders to the three prisoners to pursue and apprehend the major. Mr. Francis Montgomery, one of the Lords of Privy Council, deposed that, on the day of the murder, he was applied to by the provost and magistrates of Glasgow, to concur with them in securing the peace of the city, which was in an uproar. The deponent went to the town clerk’s chamber, whose dead body he found lying on the floor, and everybody crying that Major Menzies was the murderer. The deponent concurred with the magistrates, in ordering Dovehill, then in the room, to take some of the honest townsfolk along with him, and to pursue and apprehend the murderer; upon which the people dispersed peaceably.

The jury unanimously found the indictment not proved; found the prisoners’ defence in terms of the interlocutor not proved; and found it not proved that the major offered to surrender himself; upon which the prisoners were dismissed from the bar.

This prosecution, ending very properly as it did, shows to what extent hot blood existed between soldier and civilian, when a gentleman of the major’s rank and position could, in so trifling a quarrel, on the instant, kill an unarmed official, on duty in his chamber. The major and his regiment must have, no doubt, been goaded to madness by the continual worry and insult of the populace, of which system of annoyance a notable specimen appears in this further trial, relating also to the same Lord Lindesay’s regiment.

The trial, that of a writer in Edinburgh, one George Cumming, for the murder of Patrick Falconer, soldier in Lord Lindesay’s regiment, occurred in Edinburgh in October, 1695.

The indictment set forth, that the prisoner, being in the streets of Portsburgh, a suburb of Edinburgh, on the 5th of the preceding month of September, between nine and ten at night, the deceased, Patrick Falconer, and two other soldiers of Lord Lindesay’s regiment, walked peaceably by him, in the way to their quarters, when the prisoner gave the soldiers opprobrious language, and, without any just provocation, drew his sword, with which he maliciously run the deceased through the body, of which he died within twenty-four hours.

The proofs were as follow:—

James Porteous, apothecary in Edinburgh, deposed that, in the beginning of September last, he was one evening in the streets of Portsburgh, between nine and ten o’clock, in company with three other persons, of whom the prisoner was one. The prisoner went to a house to call for his cloak, and the deceased, with two other soldiers, came up with the deponent and his companions, who asked of them what o’clock it was. He cannot be positive what answer they made; but the prisoner, who was a little way behind them, called the soldiers foul names. The soldiers asked what he said, and he repeated the words, calling at the same time to his companions to beat the soldiers. The soldiers then drew their bayonets, passed by the deponent and his companions, and went up to the prisoner, who advanced to them, and, when he was within sword’s length of them, drew it, and within a quarter of an hour the deponent heard one cry “Murder!” That same evening he called at the prisoner’s lodging, whom he found in deep concern, declaring that he had given the soldier a stab and he was afraid that it would prove mortal. At the same time he drew his sword, and spit upon it, endeavouring to wipe the blood off it. The prisoner came next morning to the deponent’s chamber, told him he had been at Lauriston (the estate and castle of the famous John Law, near Edinburgh), and there was very bad news: the soldier was dead.