It may be said that the orders given to Glenlyon were of so peculiar a nature that, if he had been a man of virtue, he would have thrown up his commission, would have braved the displeasure of colonel, general, and Secretary of State, would have incurred the heaviest penalty which a Court Martial could inflict, rather than have performed the part assigned to him; and this is perfectly true; but the question is not whether he acted like a virtuous man, but whether he did that for which he could, without infringing a rule essential to the discipline of camps and to the security of nations, be hanged as a murderer. In this case, disobedience was assuredly a moral duty; but it does not follow that obedience was a legal crime.
It seems therefore that the guilt of Glenlyon and his fellows was not within the scope of the penal law. The only punishment which could properly be inflicted on them was that which made Cain cry out that it was greater than he could bear; to be vagabonds on the face of the earth, and to carry wherever they went a mark from which even bad men should turn away sick with horror.
It was not so with the Master of Stair. He had been solemnly pronounced, both by the Commission of Precognition and by the Estates of the Realm in full Parliament, to be the original author of the massacre. That it was not advisable to make examples of his tools was the strongest reason for making an example of him. Every argument which can be urged against punishing the soldier who executes the unjust and inhuman orders of his superior is an argument for punishing with the utmost rigour of the law the superior who gives unjust and inhuman orders. Where there can be no responsibility below, there should be double responsibility above. What the Parliament of Scotland ought with one voice to have demanded was, not that a poor illiterate serjeant, who was hardly more accountable than his own halbert for the bloody work which he had done, should be hanged in the Grassmarket, but that the real murderer, the most politic, the most eloquent, the most powerful, of Scottish statesmen, should be brought to a public trial, and should, if found guilty, die the death of a felon. Nothing
