The preamble to one of our old statutes emphatically describes the disorders which prevailed in this country from one of the worst of political evils, the relaxed arm of the civil magistrate.  ' Forsameikle (says the statute) as the oversight and negligence of the civil magistrates, and judges ordinar within this realm, in putting of decreets to execution, punishing of malefactors, and rebells, and utherwise using of their offices, as becummis, partelie for regard, and feare of strang parties, and hazard of their own lives; and pairtly throw want of sufficient preparation for their effect, is the original and principale cause quhair fra * the great confusion and disordour of this lande in all estaites proceedis +.'   Therefore by this, and other acts of parliament, it is statuted, that the raising or assembling within borough, conventions of the people, without special license of the Sovereign, or authority from the magistrates of the borough; especially, if such people should presume to arm themselves, to display banners, to beat the drum, or sound the trumpet, or to make use of other warlike instruments whatever, it is statuted, that persons thus offending shall suffer the pain of death.  It is further enacted, that, whoever shall disobey and resist the authority of the Magistrates of Edinburgh, or their officers, in the execution of their duty, shall suffer the like penalty.

The prisoner was tried on these statutes.  On Sunday the 31st of January 1686, a rabble of journeymen and apprentices in Edinburgh, leagued with some students at the University, among whom fanatical principles had of late made an alarming progress ++, assembled for the purpose of insulting and interrupting those of the Popish persuasion in the exercise of their religion.  Their indignities were directed at the Chancellor's Lady, and other persons of that faith, when dismissing from their place of worship.  The mob, many of which were armed, pelted the members of that congregation with stones and dirt, rifled some of them of their clothes, and mal-treated them in their persons;  and then proceeded to the High Street of Edinburgh, where, with iron-bars, and other instruments, they attempted to break open the houses of several of the inhabitants, and did resist the Magistrates of Edinburgh, and the Commander in Chief of his Majesty's forces, and the troops under their command, and wounded several of the soldiers who were assembled in order to disperse the mob.

The military having dispersed the mob, and several of the rioters being apprehended, the magistrates, next forenoon, ordained one Grieve, a baker, an active person in the tumult, to be instantly whipped through the city by the common executioner.  To save the delinquent from undergoing the punishment awarded by the magistrates, the prisoner, Mowbray, and his associates, collected a mob afresh, rescued the baker from the town officers and the executioner, and carried him off in triumph.

The prisoner was served with an indictment, charging him with having transgressed the statutes already specified, by being engaged in this tumult; and his Majesty's Advocate declared, that he restricted the libel against the prisoner to his 'accession to the tumult on Monday in the forenoon, in rescuing the baker from the execution of justice.'  The Lords found the libel, as restricted, relevant to infer the pain of death.

The Proof.

The prisoner judicially declared, that he was present at the tumult libelled, and assisted in rescuing the baker from the town officers.  He craved God and the King's pardon for his offence, declared that he was heartily sorry for it, and came in the King's will.

George MacFarlane, one of the town officers of Edinburgh, deposed, That, on Monday last, as he was employed by the magistrates to execute the sentence against Grieve, the prisoner was one of the mob which rescued him.  The deponent called out to the prisoner to be gone; but this he refused, saying, 'he would take part with the trades;' and, upon Grieve's being rescued from the town officers, the deponent saw the prisoner take Grieve by the hand, and march off with him amidst the mob.

John Thomson, town officer, deposed, That, on Monday last, he saw the prisoner amidst the mob which threw down the town officers, and rescued the baker, and heard him declare he would stand by the trades.  Two more witnesses swore to the same purpose.

The jury unanimously found the prisoner's accession to the tumult, in rescuing the baker from the execution of justice, proved by his judicial confession.  The Court adjudged the prisoner ** to be taken to the Cross of Edinburgh on Wednesday next, the 10th of February, and to be hanged on a gibbet till he be dead.  It appears that the Privy Council granted the prisoner a reprieve till a short day.  Whether he got any farther respite, or was then hanged, is uncertain, as the records of Privy Council for A. D. 1686 are missing.  One Keith, a fencing master, was tried on the 26th of that month for accession to the same tumult, was convicted, and was hanged at the Cross of Edinburgh on the 5th of March.

+   Mary, Parl. 9. c. 83.;  James VI. Parl. 13.

++  Upon Christmas day, A.D. 1680, the Magistrates of Edinburgh, from that decent respect which was due to the Duke of York, who was then in the city, interrupted the students in their solemn procession of a Pope-burning; so that they were sain to burn him post-haste in an obscure part of the town.  On the 11th of the ensuing month of January, the house of Priestfield, the seat of Sir James Dick, Lord Provost of Edinburgh, was willfully set on fire, and with all the furniture, burnt to the ground, not without the most pregnant suspicion that it was set on fire by some students at the University.

Arnot's Hist. of Edinburgh, p. 392.

**   Fountainhall says two persons were tried this day for being concerned in this tumult; but he does not mention their names.  The records of Justiciary testify, that no person was tried or outlawed on account of this tumult, at this time, except Mowbray, nor at any other time that I know of, except on the 26th of that same month, when Keith, whose trial is also mentioned by Fountainhall, was tried and convicted.

See Fountainhall's Decisions,  vol. I,  p. 401,  407.