All this being over, the executioner took down his leg from a chest whereon it was lying all the time in the boot, and set both on the ground; and thrusting in the shelves to drive the wedges, began his strokes; at every one of which, enquiring if he had any more to say, or would say any more; Mr. Mitchel answered no; and they continued to nine strokes upon the head of the wedges; at length he fainted, through the extremity of pain at which the executioner cried, Alas! my lords, he is gone! then they stopped the torture and went off; and in a little time, when recovered, he was carried, in the same chair, to the tolbooth.
It is indeed true that Mr. Mitchel made a confession, upon the promise of his life; but the managers, having revoked their promise, because he would not adhere to his confession before the justiciary, (being advised by some friends not to trust too much to that promise) and be his own accuser. "The reader must determine (says a very impartial historian[155]) how far he was to blame now, in not owning his confession judicially, as they had judicially revoked the condition upon which the confession was made, and to put a man to torture for finding out things, for which they had not the least proof, seems to be unprecedented and cruel, and to bring him to a farther trial appears to be unjust." For as another author has well observed, "That when a confession or promise is made upon a condition, and that condition is judicially rescinded, the obligation of the promise or confession is taken away, and both parties are statu quo, Josh. ii. 14, &c. That, in many cases it is lawful to conceal and obscure a necessary duty, and divert enemies from a pursuit of it for a time. 1 Sam. xvi. 1, 2. xx. 5, 6. Jer. xxxviii. 24, &c. That when an open enemy perverts and overturns the very nature and matter of a discourse or confession, by leaving out the most material truths, and putting in untruths and circumstances in their room, it no longer is the former discourse or confession, &c. That when a person is brought before a limited judicatory, &c. before whom nothing was ever confessed or proven, the person may justly stand to his defence, and put his enemies to bring in proof against him, &c."
After this Mr. Mitchel continued in prison till the beginning of next year, when he and Mr. Frazer of Brae were with a party of twelve horse and thirty foot, sent to the Bass, where he remained till about the 6th of Dec. when he was again brought to Edinburgh, in order for his trial and execution; which came on upon the 7th of Jan. 1678. On the third of the month Sir George Lockhart and Mr. John Ellis were appointed to plead for the pannel; but Sharp would have his life, and Lauderdale gave way to it. Sir Archibald Primrose, lately turned out of the register's place, took a copy of the council's act anent Mr. Mitchel, and sent it to this council; and a day or two before the trial, went to Lauderdale, who, together with lord Rothes, lord Halton and Sharp, was summoned: The prisoner's witness, Primrose, told Lauderdale, That he thought a promise of life had been given——The latter denied it——The former wished that that act of the council might be looked into——Lauderdale said, He would not give himself the trouble to look over the book of council.
When his trial came on, the great proof was, his confession, Feb. 16. 1674.; many and long were the reasons upon the points of the indictment. Sir George Lockhart[156] argued in behalf of the prisoner with great learning, to the admiration of the audience, That no extra-judicial confession could be allowed in court, and that his confession was extorted from him by hopes and promises of life. The debates were so tedious that the court adjourned to the 9th of January; the replies and duplies are too tedious to be inserted here: The reader will find them at large elsewhere.[157]
The witnesses being examined, lord Rothes (being shewn Mr. Mitchel's confession) swore that he was present, and saw him subscribe that paper, and heard him make that confession, but that he did not at all give any assurance to the prisoner for his life; nor did he remember that there was any warrant given by the council to his lordship for that effect, &c. Halton and Lauderdale swore much to the same purpose; but the arch-bishop swore, that he knew him, at the very first sight at the bar, to be the person who shot at him, &c. But that he either gave him assurance or a warrant to any to give it, was a false and malicious calumny. That his grace gave no promise to Nichol Somerville, other than that it was his interest to make a free confession. This Nichol Somerville, Mr. Mitchel's brother-in-law, offered, in court, to depone, That the arch-bishop promised to him to secure his life, if he would prevail with him to confess. The arch-bishop denied this, and called it a villainous lie. Several other depositions were taken; such as Sir William Paterson, Mr. John Vanse, and the bishop of Galloway, who all swore in Sharp's favour, it being dangerous for them, at this juncture, to do otherwise.
After the witnesses were examined, the advocate declared he had closed the probation; whereupon Mr Mitchel produced a copy of an act of council March 12th, 1674, praying that the register might be produced, or the clerk obliged to give extracts; but this they refused to do.——"Lockhart (says Burnet[158]) pleaded for this, but Lauderdale, who was only a witness, and had no right to speak, refused, and so it was neglected."
The assize was inclosed, and ordered to return their verdict to-morrow afternoon, which being done, the sentence was pronounced, "That the said Mr. James Mitchel should be taken to the grass-market of Edinburgh, upon Friday the 18th of Jan. instant, betwixt two and four o'clock, in the afternoon, and there to be hanged on a gibbet till he be dead, and all his moveables, goods and gear escheat, and in-brought to his majesty's use, &c." No sooner did the court break up, than the lords, being upstairs found the act recorded, and signed by lord Rothes the president of the council. 'This action' says the last-cited historian, 'and all concerned in it, were looked on by all the people with horror, and it was such a complication of treachery, perjury and cruelty, as the like had not perhaps been known.'
Two days after the sentence, orders came from court, for placing Mr. Mitchel's head and hands on some public place of the city; but the sentence being passed, no alteration could be made; and if Sharp had any hand in this, he missed his end and design. About the same time, his wife petitioned the council, that her husband might be reprieved for some time, that she might be in case to see and take her last farewel of him, especially as it was not above twelve days since she was delivered of a child, and presently affected with a fever; but no regard was paid to this: The sentence must be executed[159].
While he was in prison, he emitted a most faithful and large testimony[160]. In the first place, testifying against all profanity. Then he gives the cause of his suffering, in the words of Elijah, 1 Kings xix. 14. I have been very zealous for the Lord of hosts, &c. He adheres to the covenanted work of reformation and the covenant; approves of lex rex, the causes of God's wrath, apologetical relation, Naphtali, jus populi, &c. Afterwards he speaks of magistracy in these words, "I believe magistracy to be an ordinance and appointment of God, as well under the new Testament as it was under the old; and that whosoever resisteth the lawful magistrate in the exercise of his lawful power, resisteth the ordinance and appointment of God, Rom. xiii. 1. &c. 1 Pet. ii. 13. Deut. xvii. 15, &c. The lawful magistrate must he a man qualified according to God's appointment, and not according to the people's lust and pleasure, lest in the end he should prove to them a prince of Sodom and governor of Gomorrah, whom God, in his righteousness, should appoint for their judgment, and establish for their correction, &c." Then he comes to be most explicit in testifying against the givers and receivers of the indulgence, as an incroachment on Christ's crown and prerogative royal, &c.; protests before God, angels and men, against all acts made anywise derogative to the work of God and reformation; likewise protests against all banishments, imprisoning, finings and confinements that the people of God had been put to these years by-past; describing the woful state and condition of malignants, and all the enemies of Jesus Christ. And in the last place speaks very fervently anent his own sufferings, state and condition, which he begins to express in these words, "Now if the Lord, in his wise and over-ruling providence, bring me to the close of my pilgrimage, to the full enjoyment of my long-looked for and desired happiness, let him take his own way and time in bringing me to it. And in the mean time, O thou my soul I sing thou this song, Spring thou up, O well of thy happiness and salvation, of thy eternal hope and consolation; and whilst thou art burdened with this clogg of clay and tabernacle, dig thou deep in it by faith, hope and charity, and with all the instruments that God hath given thee; dig in it by precepts and promises; dig carefully, and dig continually; ay and until thou come to the source and head of the Fountain himself, from whence the water of life floweth: Dig until thou come to the assembly of the first-born, where this song is most suitably sung, to the praise and glory of the rich grace and mercy of the Fountain of life, &c." And a little farther, when speaking of his mortification to the world, and other sweet experiences, he says, "And although, O Lord, thou shouldst send me in the back track and tenor of my life, to seek my soul's comfort and encouragement from them, yet I have no cause to complain of hard dealing from thy hand, seeing it is thy ordinary way with some of thy people, Psalm xlii. 6. O God, my soul is cast down in me, from the land of Jordan and the hill Hermon, &c. Yea, though last, he brought me to the banquetting house, and made love his banner over me, among the cold highland hills beside Kippen Nov. 1673. He remembered his former loving kindness towards me; but withal he spoke in mine ear, that there was a tempestuous storm to meet me in the face, which I behoved to go through, in the strength of that provision, 1 Kings xix. 7." Then, after the reciting of several scriptures, as comforting to him in his sufferings, he comes at last to conclude with these words, "And seeing I have not preferred nor sought after mine own things, but thy honour and glory, the good liberty and safety of thy church and people; although it be now misconstructed by many, yet I hope that thou, Lord, wilt make thy light to break forth as the morning, and my righteousness as the noon-day and that shame and darkness shall cover all who are enemies to my righteous cause: For thou, O Lord, art the shield of my head, and sword of my excellency; and mine enemies shall be found liars, and shall be subdued. Amen, yea and Amen.
Sic subscribitur, James Mitchel."