To the first account, which is that favoured by Macaulay, there is this objection, that Claverhouse had been deprived of his judicial power, and, for that very reason had refused to deal with John Brown’s nephew, and delivered him up to the Lieutenant-General. Westerhall, on the other hand, is stated by Wodrow to have been ‘one empowered by the Council’; and that is probably why the historian inverts the parts played by the two respectively. But, against accepting his account, there is the difficulty of understanding how Westerhall allowed Hislop to escape from his clutches in the first instance. Whichever may be the true statement of the case, the sequel is practically identical according to both versions. ‘Claverhouse,’ says Wodrow, ‘in this instance was very backward, perhaps not wanting his own reflections upon John Brown’s murder, and pressed the delay of the execution. But Westerhall urged till the other yielded, saying, the blood of this poor man be upon you, Westerhall, I am free of it.’ Thereupon, it is stated, Claverhouse ordered a Highland gentleman, who, with his company, was temporarily under his orders, to provide the firing-party. But the Captain, continues the account, peremptorily refused, and drawing off his men to a distance, swore he would fight Claverhouse and his dragoons rather than act the part of executioner. Three troopers were then called out, and Hislop fell before their fire.
There are circumstances that make it difficult to accept this statement of the case. If Claverhouse was averse to the summary execution of Hislop, it may very safely be assumed, on the strength of what is known concerning his character, that nothing but his respect for superior authority and the blind obedience to it, which he repeatedly declared to be his guiding principle as a soldier, would have induced him to take any part in it. In that case, the whole responsibility would be removed from him, and laid upon Westerhall, whose orders he merely carried out. But this substitution is not possible. As Claverhouse cannot but have known, Westerhall was not in a position to act as judge in the case; and there would consequently have been no breach and no infringement of the strictest discipline in disregarding commands which he was not justified in giving.