Capricious as cruel in their tyranny, the council would neither allow the Presbyterians to live peaceably at home, nor permit them to seek liberty abroad, especially if they were persons of rank, whom they wished to make participators of their tyranny as they could not induce them to be willing associates in their crimes. Having learned that several noblemen and others of high station, disgusted with their proceedings, were preparing to leave the country, they issued a proclamation, January 3, forbidding any person, lord or commoner, to remove forth thereof upon any pretext whatsoever, without a special license from them, under the highest penalties; and to make assurance doubly sure, they ordered the principal among them, whom they considered as their political rivals, or who were more moderate in their principles, to attend “a committee of the privy council,” appointed to accompany the forces in the west country, to receive their orders and obey their commands.[[91]]
[91]. Numbers of the persecuted in England had left that country for America, and were founding the states of New England, New Jersey, Massachusetts, &c., which formed asylums for their brethren during these perilous times. Many of the Scots who to Holland, also sought refuge in the New World. But it would appear the Scottish prelatists being, as all turncoats are, more violent than the English persecutors, wished to retain their more conscientious countrymen at home, that they might have the pleasure of tormenting them, and enjoying the yet higher gratification of revelling on their fines. The prohibition in Scotland was intended, besides, to answer another purpose, to prevent any of the nobility proceeding to court without leave; for Lauderdale knew well the advantage of engrossing the royal ear.
Before proceeding to detail the transactions of this savage horde and their directors, I shall advert to a transaction still more disgraceful to the council, as setting at defiance all moral decency, and bursting asunder every tie that gives security to society, which can only exist well where the obligations both of the rulers and the ruled are held sacred. I mean the trial and execution of James Mitchell.
Cowards are proverbially cruel, and the renegade primate was not remarkable for courage. He seems to have been constantly haunted with the terrors of assassination. Fearing his own treacherous “law-skreened murders” might provoke some other resolute arm to retaliate, he could not be at rest while Mitchell lived, and appears to have imagined that the destruction of that poor man was necessary to secure his own safety. He therefore resolved, by making an example of him, to show that the sacred person of a priest was not to be threatened with impunity. Accordingly, Mitchell was brought from the Bass to Edinburgh in the end of last year, and received an indictment to stand trial for his attempt. On January 7, 1678, he was brought to the bar of the Justiciary, where Primrose, justice-general, sat as one of his judges, and Sir George Mackenzie acted as accuser, both of whom were perfectly acquainted with the promise of pardon which had been made. Primrose had been summoned as a witness, but was dispensed with; and, had he possessed the smallest particle of common feeling, or of common honesty, he would never have consented to sit as a judge—much less would Mackenzie, who had acted as his advocate on the former trial, have now come forward as his prosecutor; yet so it was. Primrose, however, transmitted privately to Mitchell’s advocates, a copy of the act of council in which the assurance was contained. Lauderdale had been previously warned of its existence by Kincardine. The pleadings, before entering upon the evidence, were long and ingenious. His advocates, Sir George Lockhart and Mr John Ellis, contended that the libel was not relevant,—as a mere attempt, when unsuccessful, could never constitute the crime of murder; that by the laws of this kingdom, by the civil law, and the common opinion of civilians, it was not a capital offence, except in cases of parricide or treason; and, besides, the act charged was assassination or murder committed for hire—a term and a crime unknown in Scottish law; nor is it charged against the prisoner that he was hired by any person to commit the deed. As to the confession, if such a thing existed, which the panel refused to acknowledge, it was extrajudicial, not being made in presence of the assize, who are judges of the whole proof, and therefore could not be admitted, unless taken together with the promise of pardon by which it was elicited. But they especially insisted upon the promise of pardon, as rendering any charge founded upon such confession totally irrevelant.
The Lord Advocate replied, that, by act 16, parl. James VI. nudus conatus, attempting and invading, though nothing followed, is found relevant to infer the pain of death; and by the common law, an attempt is capital, where the panel has been guilty of the proximate act, and done all that it was in his power to do:—adding, most unfairly and untruly, that Mitchell belonged to a sect that hated and execrated the hierarchy, who deemed it lawful to kill persons of a prelatical character; and he could prove that Mr James himself held such opinions, which he endeavoured to defend by wrested places of Scripture, and acknowledged that the reason why he shot at the archbishop was, because he thought him a persecutor of the nefarious and execrable rebels who appeared on the Pentland Hills. As to assassination not being known in Scots law, the term might not be there, but the nation would be worse than the Tartars, if lying in wait with a design to kill clandestinely, where a person, after mature deliberation, ripens his villany and watches his opportunity, if this should not be held in greater detestation, and punished more severely than ordinary murder. As to being hired, if taking money constitute the criminality of assassination, how much greater is it when committed to earn a higher reward. He that takes money to kill, will stab only in the dark, and where he may escape; but the sun, and the cross, and the confluence of all the world, cannot secure against the stroke of the murderer who expects heaven as his reward, and thinks that the deed deserves it. Respecting the promise of pardon, the promise of life from a judge, who has not the power to grant it, is of no avail unless the panel can prove that he expressly pactioned that his confession should not operate against him; and a confession emitted without any such regular bargain, is of no avail, even though the judge should promise life; for this would be to make a judge a king.[[92]] As to the confession being extrajudicial, so far from this being the case, it was taken by the authority of the privy council, the highest judicatory of the nation, uniting in itself the powers both of the Court of Session and the Court of Justiciary; and if confessions emitted before the lords of session are a sole, final, and plenary probation before the Court of Justiciary, it were absurd to suppose that a confession emitted before the Privy Council should not be deemed valid.
[92]. The advocate, as a proof that civilians were on his side, quoted Ægidius Bossius, who, Titulo de Examine Reorum 15 and 16, says—“Judex qui induxit reum ad confitendum sub promissione veniæ non tenetur servare promissum in foro contensioso.” The judge who induces a panel to confess, by a promise of pardon, is not bound to keep his promise in a contested trial, which seems, says Lord Fountainhall in his notes, “to be ane disingenous opinion.”
The court decided that the crime, as libelled, was relevant, i. e. sufficient, to infer the pains of law; but, at the same time, found that the defence if proven was relevant to secure the panel of his life and limb. There were no witnesses to establish the fact; his confession was the only evidence adduced; to substantiate which, Rothes was first examined, who deponed that he saw the panel sign the confession. Being asked, whether or not his lordship did offer to the panel, upon his confession, to secure his life, in these words, upon his lordship’s life, honour, and reputation? he swore that he did not at all give any assurance to the panel for his life, and that the panel never sought any such assurance from him, nor did he remember receiving any warrant from the council for that purpose. Upon this, Mitchell entreated the Chancellor to remember the honour of the family of Rothes, and mind that he took him by the hand, and said—“Jacobe, man, confess; and, as I am Chancellor of Scotland, ye shall be safe in liffe and limb;” to which all the answer returned by the Chancellor was, “that he hoped his reputation was not yet so low as that what the panel said, either there or elsewhere, would be credited, since he had sworn.” The panel, however, still averred the contrary.
Lord Hatton, Lauderdale, and Sharpe swore to the same effect. When Sharpe had done, Nicol Somerville, agent, brother-in-law to the panel, boldly contradicted him, and bid him remember certain times and expressions. The archbishop, who did not much relish getting his memory so refreshed, “fell in a mighty chaff and passion, exceedingly unbecoming his station and the circumstances he was then stated in, and fell a scolding before thousands of onlookers. Nicol yielded in nothing; and after the bishop had sworne, he cryed out that upon his salvation what he had affirmed was true.” “And the misfortune was, that few there but they believed Nicol better than the archbishop.”[[93]] Sir John Nisbet, who was Lord Advocate at the time, and one of the committee who examined Mitchell, summoned as a witness for the crown—probably to prevent him from being adduced for Mitchell—was not called, Sir George Mackenzie, it is likely, being afraid to trust him.
[93]. Fountainhall’s notes.
After the public prosecutor had declared his proof closed, the panel’s advocates produced the copy of the act of council, and craved that the books of council, which were lying in the next room, might be produced, or the clerks ordered to give extracts, which they had formerly refused. At this Lauderdale, who had no right to speak, “stormed mightily,” and told the court “the books of council contained the king’s secrets, and he would not permit them to be examined; he came there to depone as a witness, not to be staged for perjury”—an unguarded remark, which must have been understood by the judges as a plain confession that he knew he had sworn falsely; yet, with a mean servility, they would not assert their own dignity, nor do justice to the panel. They refused to grant warrant for producing the registers, because not applied for before, which Fountainhall observes “choaked both criminal law and equity, for it is never too late to urge any thing in favour of a panel until the assize be closed.” Sir George Lockhart defended him with admirable strength of reasoning; and the trial, which is characterized as the most solemn which had taken place in Scotland for a hundred years, lasted four days. The jury returned a verdict, finding him guilty upon his own confession; but the promise of pardon they found not proven. He was condemned to be hanged on Friday the 18th of January.