known, that the design in asking one was only to have an aspersion cast, both on the former ministry and on the former reign. Several provisions were prepared, with relation to the other particulars in the queen's letter: But none of these were agreed to by both Houses.

they reserved to themselves a power to change their mind, in case, upon an argument that might be made for a prohibition, they should see cause for it. Four of the judges were positively of a contrary opinion, and maintained it from the statutes made at the Reformation. "An incident happened, that diverted their The queen, having received these different opithoughts to another matter: Mr. Whiston, the nions, sent them to the archbishop, to be laid professor of mathematics in Cambridge, a before the two Houses of Convocation; and, learned man, of a sober and exemplary life, without taking any notice of the diversity be but much set on hunting for paradoxes, fell tween them, she wrote that, there being now on the reviving the Arian heresy, though he no doubt to be made of our jurisdiction, she did pretended to differ from Arius, in several parti- expect, that we should proceed in the matter culars: Yet upon the main be was partly Apol- before us. In this it was visible, that those linarist, partly Arian; for he thought the Nous who advised the queen to write that letter, conor Word was all the soul that acted in our Sa- sidered more their own humours than her hoviour's body. He found his notions favoured nour. Yet two great doubts still remained, by the apostolical constitutions; so he reckoned even supposing we had a jurisdiction: The them a part, and the chief part of the canon of first was, of whom the court was to be comthe Scriptures. For these tenets, he was cen- posed; whether only of the bishops, or what sured at Cambridge, and expelled the univer share the lower House had in this judiciary sity: Upon that, he wrote a vindication of authority: The other was, by what delegates, himself and his doctrine, and dedicated it to the in case of an appeal, our sentence was to be convocation, promising a larger work on these examined: Were no bishops to be in the court subjects. The uncontested way of proceeding of delegates? Or was the sentence of the archin such a case was, that the bishop of the dio- bishop and his twenty-one suffragan bishops, cese, in which he lived, should cite him into his with the clergy of the province, to be judged court, in order to his conviction or censure, from by the archbishop of York and his three sufwhose sentence an appeal lay to the archbishop, fragan bishops? These difficulties appearing and from him to the crown: Or the archbishop to be so great, the bishops resolved to begin with might proceed in the first instance in a court of that, in which they had, by the queen's licence, audience: But we saw no clear precedents an undisputable authority; which was to exaof any proceedings in convocation, where the mine and censure the book, and to see if his jurisdiction was contested; a reference made doctrine was not contrary to the Scriptures, and by the high commission to the convocation, the first four general councils, which is the where the party submitted to do penance, being measure set by law, to judge heresy. They the only precedent that appeared in history; drew out some propositions from his book, and even of this we had no record: so that it which seemed plainly to be the reviving of not being thought a clear warrant for our pro- Arianism; and censured them as such. These ceeding, we were at a stand. The act, that they sent down to the lower House, who, settled the course of appeals in king Henry the though they excepted to one proposition, yet 8th's time, made no mention of sentences in censured the rest in the same manner. This convocation; and yet, by the act in the 1st of the archbishop (being then disabled by the gout) queen Elizabeth, that defined what should be sent by one of the bishops to the queen for her judged heresy, that judgment was declared to assent, who promised to consider of it: But be in the crown: By all this (which the arch- to end the matter at once, at their next meeting bishop laid before the bishops in a letter, that in winter, no answer being come from the he wrote to them on this occasion) it seemed queen, two bishops were sent to ask it; but she doubtful, whether the convocation could, in the could not tell what was become of the paper first instance, proceed against a man for heresy: which the archbishop had sent her; so a new And their proceedings, if they were not war- extract of the censure was again sent to her: ranted by law, might involve them in a Præ- But she has not yet thought fit to send any munire. So the upper House, in an address, answer to it. So Whiston's affair sleeps, though prayed the queen to ask the opinions of the he has published a large work in four volumes judges, and such others as she thought fit, in octavo, justifying his doctrine, and maintainconcerning these doubts, that they might knowing the canonicalness of the apostolical constihow the law stood in this matter.

"Eight of the judges, with the attorney and solicitor-general, gave their opinion, that we had a jurisdiction, and might proceed in such a case; but brought no express law nor precedent to support their opinion: They only observed, that the law-books spoke of the convocation, as having jurisdiction; and they did not see that it was ever taken from them: They were also of opinion, that an appeal lay from the sentence of convocation to the crown; but

tutions, preferring their authority not only to the epistles, but even to the gospels. In this last I do not find he has made any proselytes, though he has set himself much to support that paradox.

"The lower House would not enter into the consideration of the representation, sent down to them by the bishops; so none was agreed on, to be presented to the queen: but both were printed, and severe reflections were made, in several tracts, on that which was drawn by

the lower House, or rather by Atterbury.* The bishops went through all the matters, recommended to them by the queen; and drew up a scheme of regulations on them all: but neither were these agreed to, by the lower House; for their spirits were so exasperated, that nothing sent by the bishops could be agreeable to them. At last the session of parliament and convocation came to an end."

the queen did not confirm the step that we had made. This was not unacceptable to some of us, and, to myself in particular; I was gone into my diocess, when that censure was passed; and I have ever thought, that the true interest of the Christian religion was best consulted, when nice disputing about mysteries was laid aside and forgotten."

In the year 1707, the House of Commons had ordered to be burned by the hangman, An Argument proving that according to the covenant of eternal life revealed in the Scrip

"The censure that was passed on Whiston's book, had been laid before the queen in due form for her approbation: but at the opening of the session in December 1712, the bishops finding that no return was come from the throne in that matter, sent two of their number, to re-tures, man may be translated from bence ceive her majesty's pleasure in it; the archbishop being so ill of the gout, that he came not among us all that winter. The queen had put the censure, that we had sent her, into the bands of some of her ministers, but could not remember to whom she gave it; so a new extract of it was sent to her; and she said, she would send her pleasure upon it very speedily: but none came during the session, so all further proceedings against him were stopped, since

into that eternal life, without passing through death, although the human nature of Christ himself could not be thus translated, till he had passed through death.' Dr. Somerville says, " As this proposition could not be productive of bad influence upon practice, so it was defended with great ingenuity, and every mark of sincerity by the author:" and he observes, that by the expulsion, "the Commons seem rather to have displayed an officious zeal for orthodoxy."

letter represented to the Speaker, that he was Mr. Asgill had on the 10th of November by detained a prisoner in the Fleet upon two executions, and Dr. Somerville adopts the supposition that, "It was probably with the view of getting rid of this petition, and the disclaiming connexion with a person, whose embarrassments had brought him under reproach, more than from any motive of religious zeal; that the House inflicted such a severe sentence." It may however be observed, that the Commons had, by delivering Mr. Asgill out of custody, formally recognised his connexion with them, and given him the full benefit of it before they questioned him concerning the publication.

after noticing the persecution of the poor Mr. Barrington (Observations on 2 Hen. 5,) harmless Lollards in that king's reign, says, "Titus thought very differently, with regard to these kinds of prosecutions; Tas ri dixas The ασέβειας στ' αυτός ποτε εδέξατο, επ' άλλοις επέτρεψεν, Dio Cassius, 1. lxvi."

447. Proceedings against Mr. JAMES DUNDAS, for Leasing-making and Sedition: March 3rd, 10 ANNE, A. D. 1712*. [Maclaurin's Arguments and Decisions in Remarkable Cases before the High Court of Justiciary and other Supreme Courts in Scotland.]

Her MAJESTY'S ADVOCATE against Mr. JAMES
DUNDAS, Advocate.-Leasing-making.-
Sedition.-Asserting the Pretender's right,

&c.

THREE Libels were executed successively against the pannel, all of them of the following

tenor:

"That where, by the law of God, and the laws of this and all other well-governed realms, every soul ought to be subject unto the higher

*Boyer, who had before mentioned (p. 456) that in 1710 the friends of the Pretender had distributed in the Netherlands such a medal as that which gave rise to this prosecution, thus

ought to honour the king: likeas by the laws and acts of parliament it is statute; and first by the act of parliament king James 1, parl. 2, cap. 43, That leasing-makers, and tellers of them, to the engendering of discord between the king and his people, tyne [forfeit] life and the commonwealth of England, had been received, and why not this?" Upon this Mr. Duncan Forbes, brother to Colloden, and Mr. Joseph Hume of Nineholes, said, it was time enough then to receive the medal, when the Pretender was hanged; to whom adhered Mr. Hugh Dalrymple, son to the president; Mr. James Ferguson, son to sir John Ferguson of Kirkennel, and sir James Stuart of Goodtrees, her majesty's solicitor. After that, Mr. Dundass, of Armiston, rose up, and made the fol

powers, as ordained of God, and none ought to
revile or curse the ruler of the people, but all
ought to submit themselves dutifully to the or-
dinances of man, for the Lord's sake, whether
it be to the king, as supreme, or to governors,
as unto them that are sent by him; and all
relates (pp. 511, et seq:) the circumstances
more immediately connected with the case.
"A spirit of Jacobitism discovered itself in
Scotland; which was owing to several con-
curring causes. It was a general observation,
that the Union of the two kingdoms having
been mainly obtained by bribery and corrup-
tion within doors, by force and violence with-
out; and, on the other hand, the desirable end
of it, an union of affections and advantages,
not being cordially prosecuted, the ill humours
and discontents, that occasioned a strong op-lowing speech:
position to that transaction in 1706, were rather
increased than abated, when the queen thought
fit to change her ministry; which was neces
sarily attended with alterations in Scotland.
Moreover, some of the nobility there, who had
formerly most warmly opposed, both the
settling of the succession in the Protestant
line, and the Union; but who had private
piques against the late English ministers, being
now chosen into the British parliament, it is
not improbable, that the discontented Scots,
particularly the friends of the Pretender, might
fondly believe this to be a proper opportunity,
both to shew their own inclinations, and to
try how far they might expect to be counte-
nanced: to which they might be further en-
couraged by the late numerous English ad-
dresses, asserting and maintaining the sole
hereditary right. Upon this presumption, the
duchess of Gordon, a Roman Catholic, having,
about the latter end of June, sent to Mr. Ro-
bert Bennet, dean of the Faculty of Advocates
of Edinburgh, a silver medal, with a head on
the right side, and this legend, Cujus est?' And
on the reverse, the British islands, with this
motto, Reddite,' as a present to the faculty, the
said medal was first left in the hands of one
of their servants; the dean being shy either to
accept it, or place it in the repository of rari-
ties, before he had consulted some of the
members of the faculty. In order to that,
there being either an occasional, or set meet-
ing, on the 30th of June, Mr. Bennet pre-
sented to them the medal before-mentioned,
telling the faculty, "Her grace the duchess
of Gordon sent, as a present to them, the
medal of king James the eighth, whom they,
and the English, called the Pretender: and he
hoped thanks were to be returned to her grace."
Mr. Alexander Stevenson answered, that the
medal should be returned to her grace, for the
receiving it was throwing dirt on the face of the
government. He was seconded by Mr. Robert
Alexander, of Black-house, who said, that the
receiving of such a medal, was owning a right
contrary to her majesty's. Mr. Robert Frazer
answered, "That Oliver Cromwell's medal,
who deserved to be hanged, and the arms of

"Dean of Faculty, whatever these gentlemen may say of their loyalty, I think they affront the queen, whom they pretend to honour, in disgracing her brother, who is not only a prince of the blood, but the first thereof; and if blood can give any right, he is our undoubted sovereign. I think, too, they call her majesty's title in question, which is not our business to determine. Medals are the documents of history, to which all historians refer; and therefore, though I should give king William's stamp, with the devil at his right ear, I see not how it could be refused, seeing an hundred years hence, it would prove, that such a coin had been in England. But, dean of faculty, what needs further speeches? None oppose the receiving the medal, and returning thanks to her grace, but a few pitiful scoundrel vermin and mushrooms, not worthy our notice. Let us therefore proceed to name some of our number, to return our hearty thanks to the duchess of Gordon." Hereupon the dean of the faculty put it to the vote, and it was carried by a majority of 63 voices against 12, (there being 75 members present) that thanks should be returned to her grace, by Mr. Dundass, and Mr. Horn of Westhall. Three days after, these two waited on the duchess, and Mr. Dundass returned her the most hearty thanks of the faculty for all her favours, particularly in presenting them with a medal of their sovereign lord the king; hoping, and being confident, that her grace should, very soon, have an opportunity to compliment the faculty with a second medal, struck upon the restoration of the king and royal family, and the finishing rebellion, usurping tyranny and whiggery. It was, on this occasion, justly observed, that this medal was not new; for the public had an account of its being dispersed in the Netherlands about a year before: and it was then the general opinion, that it was struck upon the fond hopes given by the Jacobites in England, to their correspondents in France, that the British nation was ready to declare for the Pretender: to which the distractions occasioned by Dr. Sacheverell's Sermon and Trial, and the asserting the doctrines of divine

goods to the king; which, by the act of parlia- | unreasonable communing, to the occasioning of ment, Ja. 5, parl. 6, cap. 83, is extended to such conspiracy against the prince, or of sedition, as make evil information of the king to his lieges, are to be punished at the queen's pleasure: and as well as to those that make leasings to the by the act of parliament, Ja. 6, parl. 8, cap. king of his lieges: likeas by the act of parlia- 134, all such as privately or publicly, in serment, queen Mary, parl. 6, cap. 60, speaks of mons, declarations, or otherwise, utter slander

to favour a second invasion: the rather, because Mr. Dundass, in his compliment to the duchess of Gordon, did not scruple to insinuate a speedy restoration of the king and the royal family.

hereditary right, and of absolute passive obedience, diametrically opposite both to the late Revolution, and the Protestant Succession, gave some air of probability. Nor was this medal scarce, but rather common; and as for its intrinsic value, it did not exceed half a "The report of this medal's being presented, crown: so that it could not be worth either and received with the circumstances abovethe duchess's while to present it, or the fa- mentioned, having made great noise in Edinculty's to receive it, on the account of its bargh; sir David Dalrymple, the queen's lord being new, scarce, or valuable in itself. And advocate, thought it his duty to give an acif the advocates designed it only as a curiosity, count of it to the duke of Queensberry, one of they might have easily procured it, and placed the principal secretaries of state, who hapit among their collection, without formality and pening to die at this very juncture, that infornoise. But the duchess's presenting it, and mation was laid before the queen, by one of the some of the advocates receiving it with solem- other secretaries: whereupon, orders were nity, and endeavouring to make it the act of sent to the lord advocate, to enquire into that the faculty, by returning thanks to her grace in matter. The faculty of advocates being senthe name of the whole society, with so much sible of the error committed by some of their ostentation, was certainly a public and trea- members, endeavoured to palliate it by a desonable affront to her majesty, a tacit arraign- claration, importing, "That being met extrament of her title, and a striking at the settle- ordinarily, it appeared to them, that a medal ment in the House of Hanover. Nor is it to was sent to one of their servants; who being be doubted, that the design of the Jacobites called, acknowledged his having the same, and was to give reputation to their cause, by en- justified that it never was put into the faculty's gaging so many gentlemen of the long robe collection of medals, nor had ever been out of to espouse it; as the readiest way to bring the his custody. That the said dean and faculty common people into their measures: for as did, at the same time, unanimously declare, these are generally led by example, they would that they rejected the offer of the said medal, be apt to conclude, that there could be no and ordered the said servant to deliver up the danger in following the pattern set them by same into the hands of the lord advocate, which those, who, of all men, ought best to under- was done in their presence: and did unani. stand the laws and constitution of their coun- mously appoint a committee, to bring in an act try. The timing of this transaction was like- of faculty; containing a narration of the fact wise judged very remarkable: for, it was soon as above, and a declaration of their duty and after the assembly of the kirk of Scotland loyal affection to her majesty's person and go, had publicly declared themselves for the Pro-vernment, and the Protestant Succession as by testant Succession in the most illustrious House of Hanover; and their sense being justly taken for that of the bulk of the Protestants in Scotland, whom they represent in an ecclesiastical capacity, it seemed, the Jacobite party there thought it necessary to balance them, by the sense of the ministers of law and justice in that country. This happened also immediately after her majesty had declared, in her speech at the close of the last session of parliament, that it was needless for her to repeat the assurances of her earnest concern for the Succession of the House of Hanover: from whence it may be concluded, that the Jacobites, being sensible of the hurt this declaration had done their cause, they might think, the only way to retrieve it, was, by getting so many lawyers to declare for them. And, in the last place, this was done at a time when the armies were in the field, and the Pretender reported to be gone from St. Germains, in order to embark in some port of France on the ocean; which might raise a well-grounded suspicion, that this was designed

law established; and their detestation of all practices, that, directly or indirectly, might contain the least insinuation to the contrary, or any encouragement to the Pretender." It was for some time matter of doub, whether the government would be satisfied with this act of the faculty; for it was well known, that, notwithstanding their public recantation, or denial, yet the fact had happened as was above related; and was, in private, justified by some of the members that had been most active in it: but as it is prudence, in many cases, for princes rather to overlook, than punish injuries; so the court thought fit to make no further inquiry into that business: wisely considering, that the advocates could not be so extravagant, as to venture upon a piece of temerity so nearly bordering upon treason, had they not been sure of being supported by a strong party of Jacobites, and other discontented persons, who wanted but an opportunity to rise. However, this lenity of the government emboldened Mr. Dundass to write, and send to the press, a vindication more traitorous, if possible, than