"On Friday last, amongst the hills betwixt Douglas and the Ploughlands, we pursued two fellows a great way through the mosses, and in end seized them. They had no arms about them, and denied they had any. But being asked if they would take the abjuration, the eldest of the two, called John Brown, refused it; nor would he swear not to rise in arms against the King, but said he knew no king. Upon which, and there being found bullets and match in his house, and treasonable papers, I caused shoot him dead; which he suffered very unconcernedly. The other, a young fellow and his nephew, called John Brownen, offered to take the oath, but would not swear that he had not been at Newmills in arms, at rescuing of the prisoners. So I did not know what to do with him. I was convinced that he was guilty, but saw not how to proceed against him. Wherefore, after he had said his prayers, and carabines presented to shoot him, I offered to him that, if he would make an ingenuous confession, and make a discovery that might be of any importance for the King's service, I should delay putting him to death, and plead for him. Upon which he confessed that he was at that attack of Newmills, and that he had come straight to this house of his uncle's on Sunday morning. In the time he was making this confession the soldiers found out a house in the hill, under ground, that could hold a dozen of men, and there were swords and pistols in it; and this fellow declared that they belonged to his uncle, and that he had lurked in that place ever since Bothwell, where he was in arms.... He also gives account of those who gave any assistance to his uncle; and we have seized thereupon the goodman of the uppermost Ploughlands, and another tenant about a mile below that is fled upon it.... I have acquitted myself when I have told your Grace the case. He has been but a month or two with his halbert; and if your Grace thinks he deserves no mercy, justice will pass on him; for I, having no commission of justiciary myself, have delivered him up to the Lieutenant-General, to be disposed of as he pleases."[55]
It is singular that neither Wodrow nor Walker makes any mention of this nephew, whose presence on that day, taken in connection with his share in the affair at Newmills,[56] puts the uncle in rather a different light. There happen also to be one or two affairs known about this John Brown which are worth noting. For instance, his name is found on a list of proscribed rebels and resetters of rebels, appended to a royal proclamation of May 5th, 1684, which will naturally account for his "having been a long time upon his hiding in the hills," as Wodrow ingenuously confesses. In other words, this Brown was an outlaw and a marked man. He was by profession a carrier—"the Christian carrier," his friends called him, for the fervour and eloquence of his preaching, which was remarkable even in a neighbourhood where the gift of tongues was not uncommon. A carrier is an extremely useful channel of communication; and, in fact, there can be really no doubt that Brown had been for some time engaged in practices which the most iniquitous Government in the world could hardly be blamed for thinking inconvenient. It has been suggested that Claverhouse was at that time especially on the watch to intercept all communication between Argyle and Monmouth, and that Brown was employed in carrying intelligence between the rebel camps. Macaulay refuses this suggestion. He points out with perfect truth that both Argyle and Monmouth were at that time in Holland. But when he goes on to say that there was no insurrection in any part of our island, he goes rather too far. The western shires of Scotland had been in a state of insurrection ever since the Pentland rising, if there be any meaning in the word at all. And, though it is true that on May 1st (the day of Brown's death) Argyle was in Holland, it is no less true that on the second he had left Holland for Scotland; that since April 21st the Privy Council had been well informed of his designs; that measures had been taken for putting the whole kingdom in a state of defence against him; and that arrests had been already made on account of treasonable correspondence with him.[57] But the question is not one of probabilities, and moreover against these probabilities it may be very fairly urged that Claverhouse's own despatch proves that the nephew's confession and the discovery of the underground armoury were not made till after the uncle's death. Nor is there any word in this despatch to show that Claverhouse had any previous knowledge of Brown or was acting on particular information. The real question, and the only question, is, was Claverhouse legally—not morally, that belongs to another part of the case—was he legally justified in ordering the man to be shot? To this there can be but one answer, so long as the phrase "legal justification" bears the meaning it has hitherto borne for those who use the English tongue: both by the spirit and the letter of his commission he was justified in what he did. By the law of the Government whose servant Claverhouse then was, the death of John Brown on that Ayrshire moor was as lawful an act as the death on the scaffold of any prisoner to-day found guilty by a jury of his countrymen. In October, 1684, the Covenanters had published a declaration, drawn up by Renwick, of their intention to do unto all their enemies whom they could lay hands on, civil no less than military, as their enemies had done and should do unto them; and the deliberate murder of two troopers of the Life Guards in the following month had shown (what, to be sure, can have needed very little proof) that this was no idle threat.[58] An Act, therefore, was hastily passed to the effect that, "Any person who owns or will not disown the late treasonable declaration on oath, whether they have arms or not, be immediately put to death, this being always done in the presence of two witnesses, and the person or persons having commission to that effect." With the severity, the folly, or the injustice of such a law we are not for the moment concerned. The fact remains that such was the law; and Claverhouse transgressed no jot of it in ordering John Brown to death. It was no question of form of religion: it was no question of previous misconduct. The man would not take the oath; and he was accordingly shot in the presence of the requisite number of witnesses by the order of a competent authority.
On the truth of the details given both by Wodrow and Walker it is impossible to form any conclusion. Wodrow gives no authority for his version. "I am well informed," he says, "I am credibly informed," and so on; but the sources of his information he nowhere gives. Walker is more communicative; he, as we have seen, professed to have learned his story from Brown's wife; but no statement of Walker's can be accepted for absolute truth, and his uncertainty about even the names of his witnesses does not add the stamp of conviction to their testimony.[59] Beyond the bare fact that the man was shot in the presence of Claverhouse nothing is certain. On the rest of the story each must make up his mind as seems best to him.
With the death of Peter Gillies and John Bryce Claverhouse is not directly charged by Wodrow. Walker, however, quotes an epitaph said to have been inscribed on the grave of these men, who, with three others, were hanged, without trial, at Mauchline by
"Bloody Dumbarton, Douglas, and Dundee,
Moved by the devil and the Laird of Lee."
These lines must have been composed some years after the event, inasmuch as the men were hanged on May 6th, 1685, and the patent of Claverhouse's peerage bears the date November 12th, 1688. This proves, what indeed few people can have doubted, that the damning testimony of "The Cloud of Witnesses" wants at least the weight of contemporary evidence. An authority, however, for this particular epitaph can be traced back to 1690, when Alexander Shields published his martyrology.[60] "The said Claverhouse," he wrote, "together with the Earl of Dumbarton and Lieut.-General Douglas, caused Peter Gillies, John Bryce, Thomas Young (who was taken by the Laird of Lee), William Fiddisone, and John Buiening to be put to death upon a gibbet, without legal trial or sentence, suffering them neither to have a Bible nor to pray before they died."[61] Defoe has evidently followed Shields;[62] but Walker, though he quotes the aforesaid epitaph, does not himself implicate Claverhouse.
Wodrow does not appear to have heard any of these stories. He names only Gillies and Bryce, quoting from the indictment, which does not specify the other sufferers, to show that the men were tried before General Drummond and a tribunal of fifteen soldiers on May 5th, and hanged on the following day. We have already seen that a few days previously Claverhouse had sent a prisoner for trial to this same General Drummond, because he had himself at that time no commission to try prisoners. Unless, therefore, we are ready to suppose that officers were in the habit of sitting on a jury with their own troopers, or to believe that within three days a change had taken place in Claverhouse's position of which there is no record either in his own letters or in any other existing document, we must accept Wodrow's narrative as the true one, and exonerate Claverhouse from all responsibility for the deaths of Gillies and his unfortunate fellow-sufferers.
Two cases yet remain of the five cited by Macaulay. With one of these—the case of the three men shot near Glasgow for refusing to pray for the King—no writer has ever pretended to implicate Claverhouse personally; but with the other he is directly concerned. Andrew Hislop was the son of a poor widow in whose house a proscribed Covenanter had lately died. This was discovered by one Johnstone of Westerhall, an apostate Presbyterian, and, like most of his class, particularly bitter against his former associates. He turned the woman with her younger children into the fields, pulled down her house, and dragged the eldest son before Claverhouse, then marching through that part of the country. So Macaulay tells the story, following for once the "Cloud of Witnesses" rather than Wodrow. According to the latter, Claverhouse found Hislop wandering about the fields, and carried him before Westerhall, "without any design, as appeared, to murder him." Westerhall voted for instant death, while Claverhouse pleaded for the lad, and only yielded at last on the other's insistence, saying: "The blood of this poor man be upon you, Westerhall. I am free of it." He thereupon ordered the captain of a Highland company, then brigaded with his own men, to provide a firing-party; but the Highlanders angrily refused, and the troopers had to do the work. Both versions, it will be seen, agree in representing Claverhouse as inclined to mercy but overborne by Westerhall. The question remains, how was it that the former, a masterful man and not easy to be silenced when he was in the right, could not save this poor lad if he had a mind to do so?
The answer is in truth not easy to find. The explanation that Westerhall was at that particular time superior in authority to Claverhouse will hardly serve. It is true that the latter had just then no civil jurisdiction at all, either to condemn or pardon—no commission of justiciary, as he wrote to Queensberry. He had been since the close of the previous year in disgrace at headquarters, in consequence of a quarrel between him and the Treasurer, arising out of some action of Colonel James Douglas, the latter's brother, of which Claverhouse seems to have expressed his disapproval rather too warmly. His name had accordingly been removed from the list of Privy Councillors soon after James's accession, and himself deprived of all his civil powers. His punishment did not indeed last long, nor was it allowed to affect his military rights. An order for his restoration to the Council had been signed on the very day of Hislop's death (though he did not take his seat again till July), but his civil powers had not been renewed. Westerhall was one of those who had in the previous year been empowered by royal commission to try prisoners, and his commission was still running when Claverhouse was disgraced. But on April 20th General Drummond was appointed to the supreme authority in all the southern and western shires, and his appointment was expressly declared to cancel all other civil commissions previously granted. Unless, therefore, some particular reservation had been made in Westerhall's favour, of which there is no existing record, he had no more jurisdiction than Claverhouse, and both were equally guilty of breaking the law. It was, indeed, still open to Claverhouse to act as he had acted with John Brown—to put the abjuration oath, and, on its being refused, to order the recusant to instant execution. There is no mention by any of the Covenanting writers that this oath was offered to Hislop. But unless it was, it is difficult to see how either Westerhall or Claverhouse could have been empowered to kill him. Nor is it likely that the latter, knowing well how many sharp eyes were on the look-out in Edinburgh to catch him tripping, would have ventured on so flagrant a breach of the law. It must also be remembered that neither Wodrow nor Walker, nor any writer on that side, has charged Claverhouse with exceeding the law. They cry out against the cruelty of the deed, but on its unlawfulness they are silent. We must suppose, therefore, that Hislop's case was the case of John Brown: he had refused the oath, and was therefore liable to death. But we cannot suppose that if Claverhouse had stood firm he could not have saved the lad's life. It is absurd to believe that at the head of his own soldiers, with another captain of the same way of thinking by him, such a man as Claverhouse was not strong enough to carry his own will against one who had not even the powers of an ordinary justice of the peace. We must, therefore, conclude that he was unwilling at that time to run the risk of further disgrace by any charge of unreasonable leniency to rebels. Like Pilate, he was willing to let the prisoner go; but, like Pilate again, he preferred his own convenience, and the prisoner was put to death.
On Defoe's list of victims murdered, as he calls it, by Claverhouse's own hand is the name of Graham of Galloway. The young man, he says, being pursued by the dragoons, had taken refuge in his mother's house; but being driven out thence was overtaken by Claverhouse and shot dead with a pistol, though he offered to surrender and begged hard for his life. Shield so words his version of the story as to make it doubtful whether the shot was fired by Claverhouse himself. In the "Cloud of Witnesses" it is not even made certain that Claverhouse was present. At the close of the year in which this alleged murder was committed Sir John Dalrymple brought his action against Claverhouse. It is not likely that so shrewd a lawyer would have overlooked such a chance as this, a case of murder committed in his own country; for murder it would certainly have been, were Defoe's story true. In 1682 military executions had not been sanctioned by law; and for a soldier to shoot a man offering to surrender would have been as clear a case of murder as was the butchery on Magus Moor. Yet throughout Dalrymple's indictment is no hint of any such offence. Claverhouse is accused of oppression by excessive fines and illegal quartering of troops, of malversation, and so forth; but of taking man's life unlawfully there is no single word.