warranted by no positive law, or ancient autho- present at any criminal prosecution; and the rity; and therefore the duty of the grand juryjury knew by Colledge's trial, and by Wilmust be founded in the oath administered to kinson's depositions before the king, that the them, which is as strict as the oath adminis- evidence of all the witnesses produced, except tered to the petit jury and to say the truth, what were to the paper, was questioned, but the verdict of the petit jury takes credit from even that was afterwards quitted by the court, the verdict of the grand jury; which is not only when it would not be swallowed by the grand the reason of the difference in the names of the jury: for afterwards the court told them, that two juries, but is likewise the reason why an if they of their own knowledge knew any thing attaint for a false verdict doth not lie against a against the witnesses, they might consider of petit jury. it, but not of what they were credibly informed by others. And, besides the credibility of the witnesses, the possibility or probability of the thing sworn is to be considered by the grand jury; an impossible thing they ought not to believe, though sworn to by never so many credible witnesses, and a very improbable thing they cannot positively on their oaths swear they believe. The oath of the grand jury, is, To present the truth, the whole truth, and nothing but the truth: The oath of the petit jury is, well and truly to try, and true deliverance 'make, between the king and the prisoner at the bar, &c.' which signifies the same thing as to present the truth, &c. It is true, some reasons have been offered, which, if considered, are words without sense; as that the presentment of the grand jury is but in order to bring the prisoner to his trial, and he not before the grand jury to make his defence himself: but that can be no reason why probabilities should satisfy the jury, because it doth not answer the design of the law, which will have a man convicted by the positive oaths of two juries, consisting of more than twenty four, in all indictments. Next, why is a grand jury composed of more substantial and understanding men than a petit jury, if their business be mere formality, or a matter of less weight than the business of a petit jury? In the last place, why less evidence is required to convict a man in his absence, than is required to convict him if present? It is far from an argument, that less evidence is required to convict one if absent, than if present, that it seems to me that more evidence should be required to do it. Men may, and often do make very fair stories in the absence of a person accused, that when present, he easily answers; and there being no positive law for the direction of a grand jury in that matter, a grand juryman is excusable, nay, it is his duty to give a verdict according to the plain understanding of the words of his oath, which is to present the truth, as far as he is convinced of it; and that truth must be found according to his knowledge, or as it is represented to him by witnesses. And not only the fact, but what the crime of the fact alledged in the Bill of Indictment, the grand jury, as far as they are capable of judging matter of law, ought to consider; so they were told in the charge given them. It is true, if they were ignorant in the law, and the court in their directions misled them, as if the court should tell them stealing a horse is high-treason, and the grand jury find it accordingly, it is excusable in the grand jury, But wrong though punishable in the court. directions by the court, in finding a fact where there is no evidence, do not excuse the jury. Now, to examine the matter in hand by these rules, could any person who knew my lord Shaftesbury, or that had heard of, or believed his character to be what it was, believe that it was possible for him to discourse with the witnesses at the rate they swore, to some of them at the first, to others of them the second time he saw them; to discourse of matters of policy with Booth at one time, and afterwards with Haynes, and afterwards with Macnamarra, fellows of so little sense, that he would have been ashamed to have entertained them in the meanest office about him; and yet, as they pretended, he makes them his privadoes in the secret, of not so much what he would have had them, but of what he intended himself to do? Who could believe any thing Turbervile, Smith, or Haynes should say, where there was so much of their falshood, and of their designs to swear falsly, proved against them in Colledge's trial; Or of Ivey, and the three Macnamarra's after that trial, who though they were not produced at it, because the king's counsel by Colledge's notes saw he was able to falsify them, yet some witnesses in that trial proved their design of swearing falsly? And as for the witnesses, they must be persons of credit; and all persons are supposed to be so, unless the grand jury know the contrary, or have been so credibly informed. It is true, a grand jury ought not to believe coffee-house stories, or light stories; but common fame by credible persons, which is Vor Populi, ought to prejudice them against a witness, so as to disbelieve him and it is no answer to say, as the Chief Justice in this case said, that the Who could believe Booth's story of listing credibility of the witness is not to be considered so many men under Wilkinson, to be at my by the grand jury, because the king is not lord Shaftesbury's dispose at Oxon, after Colpresent to defend the credit of his witnesses: ledge's trial, and after what Wilkinson had testhough the fact in that case was not true, fortified to the king and council, though not then the king's attorney, solicitor and counsel were proved to the grand-jury? present, and I think the king is no otherwise A judge indeed cannot take notice of any trial. thing not proved (though he may and ought to was of another opinion in the lord Russel's be a witness, if he knew any thing material of the matter tried before him and others); but a grand-jury may take notice of any thing they know or believe. The passages at Colledge's trial were pretty notorious, being authentically said, that the intention of levying war, or depublished by Fra. North, and the examination of Wilkinson by as authentic a paper, And that this indictment was on that statute, was expressly said to the grand jury, and upon good reason; for the court in their charge signing to imprison the king, was not treason, till the statute of Charles the Second; though in the lord Russel's trial it was held to be treason by the statute of Edw. 3, and therefore the time of the treason committed was material to be found by the jury. As for the writing found in the earl's study, it was no manner of evidence of treason, admitting what the witnesses swore as to the finding it to be true; because it was not proved that it was prosecuted or composed by the earl of Shaftesbury, or by his order, and that piece of evidence was in that particular a mere original. In Fitzharris's case, it was proved the libel was composed by his direction; Colonel Sidney's book was proved to be like his hand; it was pretended that Colledge said he was the anthor of the Rarce-Shew, and no example of this evidence was ever made use of before. Neither was it evidence of treason as to the matter, for there was not one word against the present king, but his successor, if he should be such a person. It was unaccountable, that the witnesses concealed what they heard the earl speak so long, of which none of them pretended to give any reason; nor was it any excuse to those who signed a petition to the city, in which they suggested they were tempted to swear against their consciences, to say they knew not what was in the petition: ile that sets his hand to a thing as if he assented to it, but doth not, is a man of falshood. Suppose one sets his hand to a bond, said to be sealed and delivered, not having seen it sealed and delivered, is not he guilty of little less than forgery? But admitting those witnesses had sworn truth, yet the jury ought not to have found the bill; for they ought to find the bill true according to all the material circumstances of it, as well as the substance of it, which was High-treason. One material circumstance of it was, that it was said to be High-treason within the statute of Charles 2. And that made another circumstance of the indictment material, which was the time when that treason was committed; because by that It is true, one of the king's counsel said that statute the prosecutions of treason on that sta- one passage in it was that they would join to detute ought to be within six months after it is stroy the mercenary forces about London, and committed, and the indictment ought to be thence inferred it was downright levying war within three months after the prosecution; and against the king and his guards; whereas there is he being imprisoned in July, and the bill sug- not any such word or thing in the paper as he gesting that the supposed treason was committed pretended to cite: and if it had been in the pathe 18th of March before, and divers other per, it would have been but evidence of a treason times, both before and after, which might be within the statute of the late king. And then interpreted to have been after the prisoner's the time of writing it ought to have appeared ; commitment; had the jury found the bill as and if that had been cleared, yet for the above laid, they had found the treason to have been reasons it was no evidence: and the grand-jury, committed, not only within the time the prosecution by that statute ought to be, but also within the time the indictment ought to have been preferred; whereas in truth the earl had been imprisoned above three months before the indictment preferred, and there was no evidence of any treason committed by him after his imprisonment, and therefore the finding the bill as laid had been injurious, to bring a man in question for his life on that statute, whereas by Jaw he ought not to have been. though some of them afterwards smarted for it upon other pretences, did like honest understanding gentlemen; and had they done otherwise, to avoid the ignominy of being called, though in truth it was an honour to be, an Ignoramus jury, they had justly deserved the reproach which since have lighted on other juries, such as Mr. Cornish's, and the like. And having spoken of this Ignoramus jury, for which, two of them, if not more, were afterwards upon other pretences severely handled; For it was resolved in Colledge's case, that I think fit to say something of the sufferings the prosecution for treason on that statute of one, for being in a preceding Ignoramus ought to be within six months, and the indict-jury, because it was a mere novelty; and that ment within three months, though the court was Mr. Wilmer. 284. The Trial of the Earl of ARGYLE,* in Scotland, for Treason: 33 CHARLES II. A. D. 1681. [The Account of this Trial published in former Editions appears to have been extracted from "The CASE of the Earl of AR"GYLE: or, an exact and full Account of "his Trial, Escape, and Sentence. As "likewise a Relation of several Matters of "Fact, for better clearing of the said Case:" contained in a volume, entitled, "State) Tracts, being a further Collection, c. from the year 1660 to 1689," published in London in 1692; which Case I conjecture was written by sir James Stewart (See 4 Laing's History of Scotland, 119, edition of 1804). The Introduction to this "Case" is as follows: was earnest to know, was at first, I thought, so plain, that I needed not, and grew afterwards so exceedingly mysterious, that I could not, for some time, give you so perfect an account of it, as I wished: but this time being still no less proper, the exactness of my narrative will, I hope, excuse all delays. "The design against him being now so clear, and the grounds founded on so slender, that to satisfy all unbiassed persons of his integrity, there needs no more, but barely to represent matter of fact; I should think shame to spend so many words, either on arguments, or relation, were it not lest to strangers some mystery might still be suspected to remain concealed: and therefore to make plain what they can hardly believe, though we clearly see it. "Sir; EDINBURGH, May 30, 1682. "The Case of the late earl of Argyle, which," even before the process led against him, you *He was the son of Archibald marquis of Argyle, who at Scone, in the year 1650, placed the crown upon the head of Charles the 2nd, and who, as Laing expresses it, had reason afterwards to complain that his own head was the ungenerous forfeit. [See the proceedings against him, A. D. 1661, vol. 5, p. 1369, of this Collection; in the Note to which, p. 1372, reference is by an error of the press made to p. 347 instead of p. 437, of the 3rd volume of Laing's History of Scotland.] : At his royal highness's arrival in Scotland, the earl was one of the first to wait upon him, for the service that was expected from the other parts of the test. There was a hot debate upon the imposing it on all that might elect or be elected members of parliament: it was said, that was the most essential of all the privileges of the subjects, therefore they ought not to be limited in it. The bishops were earnest for this, which they thought would secure them for ever from a Presbyterian parliament. It was carried in the vote: And that made many of the court more zealous than ever for carrying through the act. Some proposed that "The main business of this parliament was there should be two tests: One for papists with the act concerning the new test that was pro- higher incapacities: And another for presbyposed. It had been promised in the beginning terians with milder censures. But that was reof the session, that as soon as an act for main- jected with much scorn, some making their taining the succession should pass they should court by saying, they were more in danger have all the security that they could desire for from the presbyterians than from the papists: the Protestant religion. So, many zealous men And it was reported that Paterson then bishop began to call for some more effectual security of Edinburgh, said to the Duke, that he for their religion upon which a test was pro- thought the two religions, popish and proposed for all that should be capable of any testant, were so equally stated in his mind, that office in church or state, or of electing or being a few grains of loyalty in which the proteselected members of parliament, that they tants had the better of the papists turned the should adhere firmly to the Protestant reli- balance with him. Another clause in the bill gion; to which the court party added, the was liable to great objections; all the royal condemning of all resistance in any sort, or family were excepted out of it. Lord Argyle under any pretence, the renouncing the Cove- spoke zealously against this: He said, the only nant, and an obligation to defend all the king's danger we could apprehend as to popery was, rights and prerogatives, and that they should if any of the royal family should happen to be never meet to treat of any matter civil or ec- perverted: Therefore he thought it was better clesiastical but by the king's permission, and to have no act at all than such a clause in it. never endeavour any alteration in the govern- Some few seconded him: But it was carried ment in church or state: and they were to without any considerable opposition. The swear all this according to the literal sense of nicest point of all was, what definition or the words. The test was thus loaded at first standard should be made for fixing the sense of to make the other side grow weary of the mo- so general a term, as the protestant religion. tion and let it fall, which they would willingly Dalrymple proposed the confession of faith have done. But the duke was made to appre-agreed on in the year 1559, and enacted in 1567, hend, that he would find such a test as this which was the only confession of faith that had prove much for his service: so it seems, that then the sanction of a law. That was a book so article of the Protestant religion was forgiven worn out of use, that scarce any one in the and his highness's service, but it had not sat many days when a change was noticed in his highness, and the earl observed to decline. in his highness's favour. "In the beginning of the parliament, the earl was appointed one of the Lords of the Articles, to prepare matters for the parliament, and named by his highness to be one of at least doubtful; though it was found to be much more moderate in many points, than could have been well expected considering the heat of that time. There was a limitation put on the duty of subjects in the article, by which they were required not to resist any whom God had placed in authority in these words, while they pass not the bounds of their office:' And in another they condemn those who resist the supreme power doing that thing which appertaineth to his charge. These were propositions now of a very ill sound: They were also highly offended at the great extent of the prerogative in the point of supremacy, by which the king turned bishops out at pleasure by a letter. It was hard enough to bear this: But it seemed intolerable to oblige men by oath to maintain it. The king might by a proclamation put down even episcopacy itself, and until the meeting of our last parliament, the world believed, the earl was as much in his highness's favour, as any intrusted in his majesty's affairs in this kingdom. "When it was resolved, and his majesty moved to call the parliament, the carl was in the country, and at the opening of it, he appeared as forward as any in his majesty's, whole parliament had ever read it: None of the bishops had, as appeared afterwards. For these last 30 years the only confession of faith that was read in Scotland, was that which the assembly of divines at Westminster, A. D. 1648, had set out, which the Scottish Kirk had set up instead of the old one: And the bishops had left it in possession, though the authority that enacted it is annulled. So here a book was made the matter of an oath, (for they were to swear that they would adhere to the protestant religion, as it was declared in the confession of faith as it was enacted in the year 1567,) that contained a large system of religion, that was not so much as known to those that enacted it: Yet the bishops went all into it. Dalrymple, who had read it, thought there were propositions in it, which being considered better of would make the test be let fall: For in it the repressing of tyranny is reckoned a duty in-as the law then stood: And by this oath they cumbent on good subjects. And the confes- would be bound to maintain that. All meetsion being made after the Scots had deposed ing in synods, or for ordinations, were herethe queen regent, and it being ratified in par- after to be held only by permission: So that liament after they had forced their queen all the visible ways of preserving religion de Mary to resign, it was very plain what they pended now wholly on the king's good pleawho made and enacted this confession meant sure; And they saw that this would be a very by the repressing of tyranny. But the duke and feeble tenure under a popish king. The being his party set it on so earnestly, that upon one tied to all this by oath seemed very hard. day's debate the act passed, though only by a And when a church was yet in so imperfect a majority of seven voices. There was some state without liturgy or discipline, it was a appearance of security to the protestant reli- strange imposition to make people swear never gion by this test: But the prerogative of the to endeavour any alteration either in church or crown in ecclesiastical matters had been raised state. Some or all of these exceptions did run so so high by duke Lauderdale's act, that the generally through the whole body of the obliging all people to maintain that with the clergy, that they were all shaking in their rerest of the prerogative, might have made way solutions. To prevent this, an explanation was for every thing. All ecclesiastical courts sub-drawn by bishop Paterson, and passed in sisted now by this test only upon the king's permission, and at his discretion. "The parliament of Scotland was dissolved soon after this act passed: And Hyde was sent down from the king to the duke immediately upon it. It was given out, that he was sent by the king to press the duke upon this victory to shew, that what ill usage could not extort from him he would now do of his own accord, and return to the church of England. I was assured, that my lord Halifax had prevailed with the king to write to him to that purpose: The letter was writ, but was not sent: But lord Hyde had it in charge to manage it as a message. How much of this is true I cannot tell: One thing is certain, if it was true it had no effect. "As soon as the test with the confession of faith was printed, there was a universal murmuring among the best of the clergy. Many were against the swearing to a system made up of so many propositions, of which some were council. It was by it declared, that it was not meant that those who took the test should be bound to every article in the confession of faith, but only in so far as it contained the doctrine upon which the protestant churches had settled the reformation: And that the test did not cut off those rights, which were acknowledged to have been in the primitive church for 300 years after Christ: And an assurance was given, that the king intended never to change the government of the church. By this it was pretended that the greatest difficulties were now removed. But to this it was answered, that they were to swear they took the oath in the literal sense of the words. So that, if this explanation was not conform to the literal sense, they would be perjured who took it upon this explanation. The imposers of an oath could only declare the sense of it: But that could not be done by any other, much less by a lower authority, such as the privy council's was confessed to be. Yet a Committee of the Articles for religion, which, by the custom of all Scots parliaments, and his majesty's instructions to his commissioner, at this time, was the first thing treated of: in this committee there was an act prepared for securing the Protestant religion; which act did ratify the act approving the Confession of Faith, and when men are to be undone if they do not submit to a hard law, they willingly catch at any thing that seems to resolve their doubts. "About eighty of the most learned and pious of their clergy left all rather than comply with the terms of this law: And these were noted to be the best preachers, and the most zealous enemies to Popery, that belonged to that church. The bishops, who thought their refusing the test was a reproach to those who took it, treated them with much contempt, and put them to many hardships. About twenty of them came up to England: I found them men of excellent tempers, pious and learned, and I esteemed it no small happiness that I had then so much credit by the ill opinion they had of me at court, that by this means I got most of them to be well settled in England; where they have behaved themselves so worthily, that I have great reason to rejoice in being made an instrument to get so many good men, who suffered for their consciences, to be again well employed, and well provided for. Most of them were formed by Charteris, who had been always a great enemy to the imposing of books and systems as tests that must be signed and sworn by such as are admitted to serve in the church. He had been for some years divinity professor at Edinburgh, where he had formed the minds of many of the young clergy both to an excellent temper and to a set of very good principles. He upon this retired, and lived private for some years: He writ to me, and gave me an account of this breach, that was like to be in the church; and desired, that I would try by all the methods I could think of to stop the proceedings upon the test. But the king had put the affairs of Scotland so entirely in the duke's hands, and the bishops here were so pleased with those clauses in the test that renounced the covenant and all endeavours for any alteration in church and state, that I saw it was in vain to make any attempt at court. "Upon this matter an incident of great importance happened: The earl of Argyle was a privy counsellor, and one of the commissioners of the treasury: So when the time limited was near lapsing he was forced to declare himself. He had once resolved to retire from all employments, but his engagements with duke Lauderdale's party, and the entanglements of his own affairs, overcame that. His main objection lay to that part which obliged them to endeavour no alteration in the government in church or state, which he thought was a limitation of the legislature. He desired leave to explain himself in that point: And he continued always to affirm, that the duke was satis also the act containing the Coronation Oath, appointed by several standing acts of parliament, to be taken by all our kings, and regents, before their entry to the exercise of the government. "This act was drawn somewhat less binding upon the successor, as to his own profession, but full as strictly tying him to maintain the fied with that which he proposed: So being called on the next day at the council table to take the test, he said, he did not think that the parliament did intend an oath that should have any contradictions in one part of it to another; therefore he took the test, as it was consistent with itself: (This related to the absolute loyalty in the test, and the limitations that were on it in the confession :) And he added, that he did not intend to bind himself up by it from doing any thing in his station for the amending of any thing in church or state, so far as was consistent with the Protestant religion and the duty of a good subject: And he took that as a part of his oath. The thing past, and he sat that day in council; and went next day to the treasury chamber, where he repeated the same words. Some officious people upon this came, and suggested to the duke, that great advantake might be taken against him from these words. So at the treasury chamber he was desired to write them down, and give them to the clerk, which he did, and was immediately made a prisoner in the castle of Edinburgh upon it. It was said, this was high treason, and the assuming to himself the legislative power, in his giving a sense of an act of parliament, and making that a part of his oath. It was also said that his saying, that he did not think the parliament intended an oath that did contradict itself, was a tacit way of saying that he did think it, and was a defaming and a spreading lies of the proceedings of parliament, which was capital. The liberty that he reserved to himself was likewise called treasonable, in assuming a power to act against law: These were such apparent stretches, that for some days it was believed all this was done only to affright him to a more absolute submission, and to surrender up some of those great jurisdictions over the Highlands that were in his family. He desired he might be admitted to speak with the duke in private: But that was refused. He had let his old correspondence with me fall for some years: But I thought it became me in this extremity to serve him all I could. And I prevailed with lord Halifax to speak so oft to the king about it, that it came to be known: And lord Argyle writ me some letters of thanks upon it. Duke Lauderdale was still in a firm friendship with him, and tried his whole strength with the king to preserve him: But he was sinking both in body and mind, and was like to be cast off in his old age. Upon which I also prevailed with lord Halifax to offer him his service, for which duke Lauderdale sent me very kind messages. I thought these were the only returns that I ought to make |