Chapter II: Part 2

_Lord Chief Baron Ward._—“There were four commissioners named in the proclamation: there is no governor mentioned that is to receive them, only those four commissioners.”

_Mr. Moxon._—“But, my lord, consider the nature of this proclamation, and what was the design of it, which was to invite pirates to come in.”

_Mr. Coniers._—“We must keep you to the proclamation: here is not enough to put off the trial.”

_Lord Chief Baron Ward._—“If you had brought yourselves within the case of the proclamation, we should be very glad: you that offer it must consider it is a special proclamation, with divers limitations; and if you would have the benefit of it, you must bring yourselves under the conditions of it. Now, there are four commissioners named, that you ought to surrender to; but you have not surrendered to any one of these, but to Colonel Bass, and there is no such name mentioned in this proclamation.”

This was, after all, but a legal quibble on the part of the crown, and the king at least should have interfered (which he certainly did not for Mullins) to save from death prisoners who had thus surrendered.

On Kidd’s urging that he acted under a royal commission, Mr. Justice Powell properly observed to the jury, “I understand, that he had a commission; therefore if any one has a commission, and he acts according to it, he is not a pirate; but if he takes a commission for a colour, that he may be a pirate, it will be bad indeed: and therefore, if the crown can prove that he was a pirate all along, this will be a great evidence against him.”

Lord Chief Baron Ward summed up the case to the jury, and his address to them is so complete a _résumé_ of the facts proved by the witnesses, and so lucid a statement of the law of piracy and felony touching the case, that I cannot do better than give his lordship’s entire speech. It was as follows:—

_Lord Chief Baron Ward._—“Gentlemen of the jury,—The prisoners at the bar, William Kidd, Nicholas Churchill, James Howe, Robert Lamley, William Jenkins, Gabriel Loff, Hugh Parrot, Richard Barlicorn, Abel Owens, and Darby Mullins, in number ten, stand all here indicted for the crime of piracy, charged to be committed by them. And the instance of the crime is for feloniously and piratically seizing and taking the ship called the _Quedagh Merchant_, with the apparel and tackling thereof, to the value of £400, and divers goods mentioned in the indictment to the value of £4,500, the goods of several persons unknown, from the mariners of the said ship, and this at high sea, within the jurisdiction of the Court of Admiralty, about ten leagues from Cutsheen in the East Indies, the 30th of January, 1697, and in the eighth year of her Majesty’s reign. Now, whether all, and any, and which of these prisoners are guilty of this crime of piracy laid in this indictment, or not guilty, it is your part to determine according to the evidence given on both sides. The crime charged on them is piracy, that is, seizing and taking this ship and goods in it, piratically and feloniously: the time and place is also laid in the indictment. To make good this accusation, the king’s counsel have produced their evidence, and two witnesses have been examined in this case; each of them were in the ship which took the _Quedagh Merchant_, and very well acquainted with all the proceedings; that is, Robert Brandinham and Joseph Palmer. The first has given you an historical account of the whole proceedings of Captain Kidd, from his first going out of England in the _Adventure Galley_, to the time of this fact charged on them. They tell you, that about May, 1696, the king entrusted this Captain Kidd with two commissions, and they were both read to you. By one of them under the Admiralty seal, he was authorised to set out as a privateer the _Adventure Galley_, and therewith to take and seize the ships and goods belonging to the French king, or his subjects, and such other as were liable to confiscation. And by the other commission, under the broad seal of England, authority was given for the taking of some pirates by name, and all other pirates in the several places therein mentioned; but in no sort to offend or molest any of the king’s friends or allies, their ships or subjects, by colour thereof. And by both commissions command was given to bring all such ships and goods, as should be taken, to legal trials and condemnations. They tell us that this ship set out from Plymouth about May, 1696, and that in their passage they did take a French ship, and they did condemn that ship. Now, gentlemen, you must bear this in your minds, that to make it piracy, it must be the taking piratically and feloniously upon the high sea, within the jurisdiction of the Admiralty of England, the goods of a friend—that is, such as are in amity with the king. Now, you see what way they went to work, and what measures they took. Captain Kidd goes out, and goes to New York; and when he was there, he has a project in his head, of setting up articles between himself and the people that were willing to be concerned with him: for now, whether it seems more probable from what followed, that Captain Kidd designed to manage himself according to the measures given him, and the powers of his commissions, or any other way, you must consider: for it is told you, that between one hundred and fifty and one hundred and sixty men came in under these articles, whereof the other prisoners were part, and concerned in them. And as to those articles, the import of them was, that whatever should be taken by these people in their expeditions should be divided into one hundred and sixty parts, whereof Captain Kidd was to have forty shares for his part, and the rest were to have according to the merits of each party, some whole shares, and some half shares.

“Now, after these articles, you perceive what progress they made, and what course they took; they went from one place to another, and used a great deal of severity wherever they came. A design they had to go into the Red Sea, and they had expectations of the Mocca fleet that lay at Mocca, and they sent their spies three times to get intelligence: the two first times they could make no discovery; but the third time they made an effectual discovery that the fleet was ready to sail; and in the meantime Captain Kidd lay there in expectation of this fleet; and as the first witness tells you, Captain Kidd said, he intended to make a voyage out of this fleet. Well, he had a discovery of this fleet, and they came accordingly; and they tell you, that he and his men did attack one of the ships; but these ships being guarded by two men-of-war, he could make nothing of them; however, he showed what his intention and design was. Could he have proved that what he did was in pursuance of his commissions, it had been something; but what had he to do to make any attack on these ships, the owners and freighters whereof were in amity with the king? This does not appear to be an action suitable to his commissions. After he had done this, he came to land, and there, and afterwards at sea, pursued strange methods, as you have heard. The seeming justification he depends on is his commissions. Now it must be observed how he acted with relation to them, and what irregularities he went by. He came to a place in the Indies, and sent his cooper ashore, and that cooper was killed by the natives; and he uses barbarity, and ties an Indian to a tree, and shoots him to death. Now he went from place to place, and committed hostilities upon several ships, dealing very severely with the people.

“But this being something foreign to the indictment, and not the facts for which the prisoners at the bar are indicted, we are confined to the _Quedagh Merchant_; but what he did before shows his mind and intention not to act by his commissions, which warrant no such things. Gentlemen, you have an account, that he met with this ship, the _Quedagh Merchant_, at sea, and took her; that this ship belonged to people in amity with the king of England; that he seized this ship, and divers goods were taken out of her and sold, and the money divided pursuant to the heads contained in those articles set up in New York. The witnesses that speak to that come home to every one of the prisoners; they tell you that the dividend was made; that Captain Kidd had forty shares of the money, and the rest of the prisoners had their proportions according to the articles, some a whole share, and some a half share of that money. After they had seized the ship, you hear of a certain sort of project, that a Frenchman should come and pretend himself the master, and procure, or pretend to procure a French pass, under a colour that these people’s ship and goods, who were Moors, should be Frenchmen’s ship and goods, or sailed under a French pass, and so justify what he did under the colour of his commission from the king. Now, no man knows the mind and intentions of another, but as it may be discovered by his actions. If he would have this to be understood to be his intention, or that it was in reality, that he took this as a French ship, or under a French pass, then he ought to have had the ship and goods inventoried, and condemned according to law, that he might have had what portion belonged to him, and that the king might have had what belonged to him, as his commissions directed; but here was nothing of that done, but the money and goods which were taken were shared, and you have an account likewise how some of the goods were sold, and the money disposed of, and how the remaining goods were disposed of; and one witness speaks positively of the distribution of the goods that remained unsold, that they were divided according to the same proportions as the articles mentioned, and every one of the prisoners had his share: there belonged forty shares to Captain Kidd, and shares and half-shares to the rest.

“Now, this is the great case that is before you, on which the indictment turns: the ship and goods, as you have heard, are said by the witness to be the goods of Armenians, and other people that were in amity with the king; and Captain Kidd would have them to be the goods of Frenchmen, or, at least, that the ship was sailed under French passes. Now, if that were so, as Captain Kidd says, it was a lawful prize, and liable to confiscation; but if they were the goods of persons in amity with the king, and the ship was not navigated under French passes, it is very plain it was a piratical taking of them. Gentlemen, it is to be considered what evidence Captain Kidd hath given to prove that ship and goods to belong to the French king, or his subjects, or that the ship was sailed under a French pass, or, indeed, that there was a French pass shown or seen. He appeals indeed to the witnesses over and over again, Did you never see it? No, say they. Nor did not you, saith he, say you saw it? No, said the witness, I said that Captain Kidd said he had a French pass, but I never saw it. Now, after all, the taking the _Quedagh Merchant_ is brought down to Mr. Kidd, and the prisoners with others, and the distribution of the money procured by the sale of the goods among Mr. Kidd and his crew, whereof every one of the prisoners were present at the same time, and had proportions.

“Now, gentlemen, this must be observed: If this was a capture on the high sea, and these were the goods of persons in amity with the king, and had no French pass, then it is plain piracy. And if you believe the witnesses, here is the taking of the goods and ships of persons in amity, and converting them to their own use; such a taking at land as this would be felony, and being at sea it will be piracy; for this is a taking the ship from the right owners, and turning it to their own use. So that you have evidence as to the seizing of the ship, and dividing the money rising from the goods sold, and sharing the remainder according to the articles.

“Now, what does Captain Kidd say to all this? He has told you he acted pursuant to his commission; but that cannot be, unless he gives you satisfaction that the ship and goods belonged to the French king, or his subjects, or that the ship had a French pass; otherwise neither of them will excuse him from being a pirate; for if he takes the goods of friends he is a pirate: he had no authority for that; there is no colour from either of his commissions for him to take them. And as to the French passes, there is nothing of that appears by any proof, and for aught I can see, none saw them but himself, if there were ever any. It is proved that the people that were owners of the goods made him very large offers to redeem the ship (twenty thousand rupees, as I remember); but he would not accept their proposals, but said, ‘That is a small sum; the cargo is worth a great deal more,’ or to that effect: and further said, ‘he must answer these people, that his men will not part with it:’ and a Frenchman was to be set up for a mock business, as you have heard; and if the witness say true, they were said by the captain of the ship to be, and were reputed to be, the ship and goods of friends, and not of enemies; and if they were so, and had no French pass, then is he, and those that were concerned with him, guilty of piratically taking this ship, and of piratically seizing the goods in the ship; and neither of his commissions will justify such an action as this. If he had acted pursuant to his commission, he ought to have condemned the ship and goods, if they were a French interest, or sailed under a French pass: but by his not condemning them, he seems to show his aim, mind, and intention, that he did not act in that case by virtue of his commission, but quite contrary to it; for he takes the ship, and shares the money and goods, and is taken in that very ship by my Lord Bellamont, and he had continued in that ship till that time;[8] so there is no colour or pretence appears that he intended to bring this ship to England to be condemned, or to have condemned it in any of the English plantations, having disposed of the whole cargo as aforesaid. Here I must leave it to you to consider whether, according to the evidence that appears, there is any ground for him to say he has acted by his commission in taking the _Quedagh Merchant_ and goods in her, or whether he has not acted contrary thereto.

“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.

John Hall, writer in Edinburgh, was returning from the country one evening in the beginning of September, with the prisoner and other two comrades. When they came nigh the West Port, the prisoner went to a house for his cloak. In the meantime three soldiers came up with the defendant and his companions. He cannot be sure what answer the soldiers made when asked what o’clock it was; but the prisoner called out to them, “You rascals, what answer is that to give to gentlemen?” On this the soldiers drew their bayonets, passed the witness, and went up to the prisoner. In a little he heard the clashing, and saw the glancing of swords, upon which he went up to the combatants, and relieved the prisoner of one of the soldiers with whom he was engaged, and very soon after he heard one cry “Murder!” He then went off, and on his way he called at the house of one Widow Lindsay, who told him that the prisoner had been there with his sword drawn, and had left word that he had gone home, whither the witness followed him. He found him sitting pensive and exceeding sorrowful, expressing his fears that the soldier had got a mortal wound. One deponent saw blood on his sword, went with him next day to Lauriston, and, when they heard that the soldier was dead, the prisoner clapped his hand on his thigh and was greatly agitated.

Two surgeons swore that they found the deceased run through the body with a small sword; that the wound was mortal, and he died of it the next day.

The jury found the pannel guilty of manslaughter. The Court sentenced him to be hanged, and his personal estate to be forfeited.

This was certainly a harsh sentence, for the prisoner was clearly not guilty of that killing which amounted to and merited the penalty of murder; and so Mr. Arnot thinks; for in his work he observes on this trial, that “to condemn an innocent man to death by the sentence and forms of law has been looked upon as one of the greatest of moral evils.”

It is satisfactory to find that in a few years after this gloomy period a better feeling arose between civilians and the military in England and Scotland. The splendid victories of Marlborough brought back the old _prestige_ that attached to British troops, and made the people again look on them, in the light they have ever since done, as the gallant and glorious supporters of the might and fame of the British empire.

THE TRIAL OF ADMIRAL BYNG.

The Hon. John Byng, an Admiral R.N., was the scion of a family already of high public reputation, when it was rendered illustrious in our naval annals by this admiral’s father, whose services to his country should have at least saved his son from the extreme measure of severity which was so cruelly and so unfairly dealt out to him.

This family, the Byngs of Kent, whose brilliant achievements on sea and land obtained for them a viscountcy and an earldom, both still existing—those of Torrington and Strafford—is of ancient origin, and was of note as far back as the reign of Henry VII. One member of the House, Dr. Robert Byng, was vice-chancellor of the University of Cambridge in the time of Queen Elizabeth; and another, Thomas Byng, serjeant-at-law, was counsel to the same university. George Byng, Esq., of Wrotham, Kent, was M.P. for Rochester, and subsequently for Dover, in the reigns of Queen Elizabeth and James I. He was great-grandfather of Sir George Byng, the illustrious admiral, the father of John Byng, the unfortunate subject of this trial. Admiral Sir George Byng, the hero of the Battle of Cape Passara, and of many other hard-fought and successful engagements, well deserves a niche in our naval temple of fame. He was a man of high spirit and honour, and of great sagacity and daring. No British officer of his time rendered more service to the cause of the Revolution or better sustained the House of Brunswick; and when his victory of Passara had annihilated the navy of Spain and forced that country to a peace, King George I. was loud in his gratitude to Byng, and, on creating him Viscount Torrington in 1721, prefaced the patent with the following preamble:—

“As the grandeur and stability of the British empire depend chiefly upon knowledge and experience in maritime affairs, we esteem those worthy of the highest honours who, acting under our influence, exert themselves in maintaining our dominion over the sea. It is for this reason that we have determined to advance to the degree of peerage our trusty and well-beloved councillor, Sir George Byng, Knt. and Bart., who, being descended from an ancient family in Kent, and educated from his youth in the sea service, hath through several posts arrived to the highest station and command in our navy by the strength of his own abilities, and a merit distinguished by our predecessors and ourselves, in the many important services which he has performed with remarkable fidelity, courage, and success. In the late vigorous wars which raged so many years in Europe—wars fruitful of naval combats and expeditions—there was scarce any action of consequence wherein he did not bear a principal part, nor were any dangers or difficulties so great but he surmounted them by his exquisite conduct and a good fortune that never failed him.... Lately, when new contentions were springing up in Italy, and the discord of princes was on the point of embroiling Europe again in war, he did, with singular felicity and conduct, interpose with our squadron, crushing at one blow the laboured efforts of Spain to set up a power at sea, and advanced the reputation of our arms in the Mediterranean to such a pitch, that our flag gave law to the contending parties, and enabled us to resettle the tranquillity that had been disturbed. It is just, therefore, that we should distinguish with higher titles a subject who has so eminently served us and his country, both as monuments of his own merit and to influence others into a love and pursuit of virtue. Know ye, therefore,” &c.

The next sovereign, George II., no less acknowledged Lord Torrington’s merit, having made him first lord of the Admiralty, and having expressed to him on many occasions how indebted he and his royal predecessor were to him. After this, the way in which George II. abandoned this great man’s son to the clamour of his enemies, seems as startling an act of ingratitude as the desertion of the earl of Strafford by Charles I.

Sir George Byng, Lord Torrington, died in 1733, leaving by his wife Margaret, daughter of James Master, Esq., of East Langdon, Kent (which lady had the good fortune to die the year before the trial of her unhappy son), a family of five sons and one daughter, of whom the two eldest sons were successively Viscounts Torrington. Robert, the third son, was ancestor of the eminent line raised to the peerage as earls of Strafford; and John, the fourth son, was the Admiral Byng of this trial; and to his career I now come.

The Hon. John Byng, fourth son of Lord Torrington, was born in 1704, and when thirteen years of age, entered the royal navy under his father’s auspices. From this time forward he seems to have been in constant active employment, and to have behaved creditably on all occasions. He was made an admiral in 1745, and he that year did good service to the Crown while commanding a squadron off the coast of Scotland, by effectually hindering any supplies of consequence being landed for the use of Prince Charles Edward and his followers. In 1755, Byng was sent in command of a fleet consisting of twenty-two ships of the line, two frigates, and two sloops, in a cruise to the westward, in hopes of intercepting the French squadron under the famous Duguay, and also the squadron of La Mothe, in its return from America. Byng, however, returned to Spithead, without having been able to effect anything, though it was allowed by all that the admiral had acted judiciously in the choice of his stations. No blame was then fixed on Byng, but this non-success was harshly remembered by the public when greater adversity fell upon him; and that happened soon after.

France and England had been acting hostilely to each other for some time prior to the 18th April, 1756, when the French invaded the then British possession of Minorca, and war was formally declared between the two nations. Thus began that great contest which was to end so gloriously for this country with the conquest of Canada; but like most great contests in which England has been engaged, not forgetting the Peninsular and Crimean wars, the Government in the beginning was but little prepared for the majesty of the enterprise. The Newcastle, a feeble administration, ruled England, and Pitt, the future Lord Chatham, was in open opposition, awaiting with eagle eye the moment when he was to swoop and seize the reins of government. The following account of the weak conduct of the Ministry, as given by Smollett, graphically describes the state of affairs:—

“Under the cloak of an invading armament, which engrossed the attention of the British nation, the French were actually employed in preparations for an expedition, which succeeded according to their wish. In the beginning of the year, advice was received that a French squadron would soon be in a condition to sail for Toulon: this was afterwards confirmed by repeated intelligence, not only from foreign gazettes, but also from English ministers and consuls residing in Spain and Italy. They affirmed that the Toulon squadron consisted of fifteen or twenty ships-of-the-line, with a great number of transports; that they were supplied with provisions for two months only, consequently could not be intended for America; and that strong bodies of troops were on their march from different parts of the French dominions to Dauphiné and Provence, in order to be embarked. Notwithstanding these particulars of information, which plainly pointed out Minorca as the object of their expedition, notwithstanding the extensive and important commerce carried on by the subjects of Great Britain in the Mediterranean, no care was taken to send thither a squadron of ships capable to protect the trade, and frustrate the designs of the enemy. That great province was left to a few inconsiderable ships and frigates, which could serve no other purpose than that of carrying intelligence from port to port, and enriching their commanders by making prize of merchant vessels. Nay, the Ministry seemed to pay little or no regard to the remonstrances of General Blakeney, Deputy-Governor of Minorca, who, by repeated advices, represented the weakness of the garrison he commanded in St. Philip’s Castle, the chief fortress on the island. Far from strengthening the garrison with a proper reinforcement, they did not even send thither the officers belonging to it, who were in England upon leave of absence, nor give directions for any vessel to transport them, until the French armament was ready to make a descent upon that island.

“At length, the destination of the enemy’s fleet being universally known, the Ministry seemed to rouse from their lethargy, and, like persons suddenly waking, acted with hurry and precipitation. Instead of detaching a squadron that in all respects should be superior to the French fleet in the Mediterranean, and bestowing the command of it upon an officer of approved courage and activity, they allotted no more than ten ships-of-the-line for this service, vesting the command of them in Admiral Byng, who had never met with any occasion to signalise his courage, and whose character was not very popular in the Navy; but Mr. West, the second in command, was a gentleman universally respected for his probity, ability, and resolution. The ten ships destined for this expedition were but in indifferent order, poorly manned, and unprovided with either hospital or fire-ship. They sailed from Spithead on the 17th day of April, 1756, having on board, as part of their complement, a regiment of soldiers to be landed at Gibraltar, with Major-General Stuart, Lord Effingham, and Colonel Cornwallis, whose regiments were in garrison at Minorca, about forty inferior officers, and near one hundred recruits, as a reinforcement to St. Philip’s fortress.”

Byng, after arriving at Gibraltar, wrote to the Lords of the Admiralty, loudly and justly complaining of the state of the magazine, supplies, and other preparations there. He besides signified his opinion that even if it should be found practicable, it would be very impolitic to throw any men into St. Philip’s Castle at Minorca, as it would only add to the number that must fall into the hands of the enemy. These unpleasant reflections are supposed to have irritated the Lords of the Admiralty, and to have led them to shift the blame from themselves upon the officer who had thus dared to complain of their conduct.

The result of an expedition so wretchedly arranged might almost be anticipated. The failure was sad indeed. Byng sailed from Gibraltar, and discovered the French fleet off Minorca, then sorely pressed by the invading French forces, under the Duke of Richelieu. The admiral did not attempt to land any troops there. He, on the 20th May, 1756, made a signal to bear away two points from the wind and attack the enemy. The second in command, Rear-Admiral West, found it impossible to obey this command, but bearing away with his division seven points to the wind, he fell on the French ships opposed to him with such impetuosity, that had he been, it was urged, promptly sustained by the rear under Byng, a complete victory, in all probability, would have been the consequence. This, however, was not done. Byng, from his anxiety to preserve his line entire, kept so far back, that he took little part in the engagement. The French admiral, M. le Comte de la Galissonnière, captured no English ships, but seemed well content to avoid a closer fight, and went off at his leisure. On the following day the two fleets were no longer in sight of each other, and Byng having called a council of war, it was resolved, that as the enemy was much superior in the weight of his metal and the number of his men, it was not practicable to relieve the fortress of St. Philip’s, and it was decided to return to Gibraltar.