Birrell's Diary, under the date of July 2, 1600, has the following entry: "John Kinland [Kincaid] of Waristone murderit be hes awin wyff and servant-man, and the nurische being also upone the conspiracy. The said gentilwoman being apprehendit, scho was tane to the Girth Crosse upon the 5 day of Julii, and her heid struck fra her bodie at the Cannagait fit; quha diet verie patiently. Her nurische was brunt at the same tyme, at 4 houres in the morneing, the 5 of Julii." P. 49.
Both husband and wife belonged to houses of some note. The wife, Jean Livingston, was a daughter of John Livingston of Dunipace, "and related to many of the first families in Scotland."
Nothing seems to have been done to keep the murder from divulging. Warriston being only about a mile from Edinburgh, information very soon reached the authorities of justice, and those who were found in the house, the mistress, the nurse, and two female servants, were arrested. The crime was committed on Tuesday morning, not long after midnight. On Thursday such trial as there was took place, and it may have occupied three hours, probably less. At three o'clock on Saturday morning sentence was executed. This had been burning (i.e. after strangling), both for the principal and her accomplice, the nurse; but for the well-born woman, no doubt through the influence of her kindred, it was commuted to beheading. The servant-man who did the handiwork fled, but the penalty for undue devotion to his former master's daughter overtook him within four years. He was broken on a cart-wheel with a plough-coulter.
The judicial records in the case of Jean Livingston are lost, but the process of the murder and the provocation are known from a register of the trial of Robert Weir, the actual perpetrator, and partly also from Jean Livingston's own relation. Jean Livingston, having conceived a deadly hatred and malice against her husband, John Kincaid, u for the alleged biting of her in the arm and striking her divers times," sent word by her nurse, Janet Murdo, to Robert Weir, formerly servant to her father, to come to Wariston to speak with her concerning the murdering of him. The nurse, who, we may safely suppose, had been the witness of Kincaid's brutal behavior, was no unwilling agent. "She helped me too well in mine evil purpose," says her mistress; "for when I told her what I was minded to do, she consented to the doing of it, and ... when I sent her to seek the man who would do it, she said, I shall go and seek him, and if I get him not, I shall seek another; and if I get none, I shall do it myself." This the nurse confessed. The other two women knew nothing of the deed before it was done; "and that which they knew," says the mistress again, "they durst not tell for fear, for I had compelled them to dissemble." Robert Weir, having given consent, was put in a cellar, where he stayed till midnight, about which time he came up and went to Kincaid's chamber. Kincaid, who had waked with the "din," and was leaning over the side of his bed, was knocked to the floor by a blow in the neck, kicked in the belly, and then throttled. "As soon as that man gripped him and began his evil turn," says the wife, "so soon as my husband cried so fearfully, I leapt outover my bed and went to the hall, where I sat all the time till that unhappy man came to me and reported that mine husband was dead." She desired Weir, she says, to take her away with him, for she feared trial, albeit flesh and blood made her think that her father's interest at court would have saved her (this may have been an after-thought). But Weir refused, saying, You shall tarry still, and if this matter come not to light, you shall say he died in the gallery, and I shall return to my master's service. But if it be known, I shall fly and take the crime on me, and none dare pursue you.
A benevolent minister, who visited Jean Livingston in prison about ten o'clock on Thursday, the third day after the murder, found her "raging in a senseless fury, disdain fully taunting every word of grace that was spoken to her, impatiently tearing her hair, sometimes running up and down the house like one possessed, sometimes throwing her self on the bed and sprawling, refusing all comfort by word, and, when the book of God was brought to her, flinging it upon the walls, twice or thrice, most unreverently." His warnings of wrath to come and his exhortations to seek mercy through repentance were treated as "trittle, trattle," and she stubbornly refused to pray for herself, or to take part in his prayer, or to say so much as God help me. He told her that she was promising herself impunity, but within a few hours, when she should have the sentence of death pronounced against her, the pride of her heart would be broken. The trial and sentence followed hard upon this, and when the minister returned, some time in the afternoon, he found a visible and apparent grace beginning in her. He remained with her till after midnight, and when he left her, Jean Livingston could say that she felt in her heart a free remission of all her sins. This worthy man came to the prison again early the next morning, and found God's grace wonderfully augmented in her. She was full of joy and courage. Those that stood about her said they never saw her so amiable or well-favored. The glory of God was shining both without and within her.
To follow no further this astounding chapter in psychology, this bairn of twenty-one years,[foot-note] with whom the Lord began to work in mercy upon Thursday at two hours in the afternoon, gave up her soul to him in peace upon the aturday following at three hours in the morning. "When she came to the scaffold and was carried up upon it, she looked up to the Maiden with two longsome looks," but her serenity was not disturbed. She made a confession at each of the four corners of the scaffold, took "good night" cheerfully of all her friends, kissing them, and then, "as a constant saint of God, humbled herself on her knees and offered her neck to the axe."[foot-note]
It may be gathered from Weir's indictment that it was the ill treatment which she had received from her husband that incited the wife to the murder. Two of the ballads, A 4, B 2, make the same representation. An epitaph on Jean Livingston gives us to understand that both parties were very young, and were married aganst their will (invita invito subjuncta puella puello): whence perpetual disagreements (nihil in thalamo nisi rixæ, jurgia, lites).
In A, B, the strangling is done by the nurse and her lady, Man's Enemy personally knotting the tether in A; in C it is done by the nurse alone. In B 8 the great Dunipace, in his anger at hearing what his daughter has done, cries out for her to be put in a barrel of pikes[foot-note] and rolled down some lea. In C the father, mother, and brother come to see Jean, and would fain give everything to borrow her. This is a by much too flattering account of the behavior of her relatives, who were principally anxious to have her got out of the world with as little éclat as might be. None of them came near her in prison, though Wariston's brother did. C makes Wariston's mortal offence not the throwing a plate at her face (A) or striking her on the mouth (B), but the taxing her with a bairn by another man. The unfriendly relations of the pair must have been notorious. In the prison the wife "purged herself very sincerely from many scandalous things she had been bruited with. Not that she would excuse herself that she was a sinner in the highest rank, but that she might clear herself from these false reports that her house was charged with:" Memorial, p. xxvil.
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