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said, or did, in this matter, was only that, when have told him, that he had begun very timecalled, nay required to take the Test, and after ously in parliament to fall first on his heritable leave first obtained from his highness and coun- jurisdictions, and then upon his estate, and that cil

, he did in their presence, before the giving now he was fallen upon his life and honour, of his oath, declare, and propose to them the whereby it was easy to divine that more was sense wherein he was willing to take it; That intended, from the beginning, than the simple this bis sense neither contains, nor insinuates, taking away of his offices : seeing that some the least slander, reproach, or reflection, either of them, on his refusing the Test, were taken upon the king, the parliament, or any person away by the certification of the act of parliawhatsomever ; but, on the contrair, is in ef- ment, and that those that were heritable he offerfect tenfold more agreeable to the words of ed in parliament, to present and surrender to his the Test, and meaning of the parliament that majesty' on his knee, is bis marjsty, after hearframed it, than the explanation emitted by the ing him, should think it fit; only he was not council: and was also most certainly, the first willing to have them, torn from him, as hath day, by them accepted ; and, when the next been said ; and if that were all were designed, day challenged, by him offered to be retracted, as was at first given out, the advocate need not and refused to be signed : That the whole in- have set him on high, as Naboth, and accuse dictment, and more especially that part of it him as a blasphemer of God and the king: about the treason, is a mere rhapsody of the most Then turning his speech to the lords of jusirrational, absurd, and pernicious consequences, ticiary, he thought to have desired that they that ever the sun beheld, not only forcing the would yet seriously consider his words, in common rules of speech, charity, and hu- their true sense and circumstance, his own exmanity; but tranversing all the topics of law, planation of his explication, and especially the reasop, and religion, and threatning no less, in foregoing matter of fact to have been laid bethe earl's person, than the ruin of every before them, with his defences, and grounds of man's fortune, life, and honour ; That the exculpation; as also have told them, that they earl's defences, and grounds of exculpation, could not but observe how that he was singled were most pregnant and unanswerable, and out amongst thousands, (against whom much either in themselves rotour, or offered to be in- more than all he is charged with could be alstantly verified. And lastly, that the aggrava- ledged) and that they must of necessity actions pretended against bim do either directly knowledge (if they would speak out their own make for him, or most evidently discover the conscience) that what he had said was spoke in restless malice of his implacable enemies : pure innocence, and duty, and only for the exoShall our gracious king, who not only clearly neration of himself, as a christian, and one hounderstands right and hates oppression, but also noured to be of his majesty's privy council to all his other excellent qualities, hath by his (where he was bound, by his oath, to speak gentleness and clemency, even towards his truth freely) and not to throw the smallest reenemies, added that great character of good proach on either person or thing. Adding, ness, upon vain and false insinuations, and un- that he was loath to say any thing that looks reasonable and violent stretches, not only take like a reflection upon his majesty's privy-counaway the life of an innocent person, but of one cil; but if the council can wrong one of their who himself and his family (be it said withont own number, he thought he might demand, if disparagement) have for a longer time, and more he had not met with hard measure? For first faithfully, and signally served his majesty and he was pressed, and persuaded to come to the the crown, than any person, or family of his council; then they receive his explanation, degree and quality, of all his persecutors, can and take his oath, then they complain of bim pretend to ? Shall his numerous family, hope to his majesty, where he had no access to be ful children, his friends and creditors, all be de- heard ; and by their letter, under their hands stroyed? Shall both former services be forgot, affirm, that they had been careful not to suffer

oppressed, and all rules of justice, any to take the Test with their own explanaand laws of society and humanity for his sake tions, albeit that they had allowed a thing very overturned ? Shall not only the earl be cut off, like it, first to earl Queensberry, then to the and his noble and ancient family extinguished, clergy: And the president, now chancellor, but his blood and memory tainted with as black had permitted several members of the college and horrible a stain, as if he had conspired with of justice to premise, when they swear the Jacques Clement, Ravillack, the gunpowder Test, some one sense, and some another, and miscreants

, the bloody Irish rebels, and all the some nonsense, as one saying he took it in sano other most wicked and heinous traitors of that sensu ; another making a speech that no man gang? And all this for a mere imaginary crime understood ; a third, all the time of the readwhereof it is most certain, that no man living ing, repeating, ' Lord have mercy upon me hath, or can have, the least real conviction, miserable sinner :' Nay, even an advocate, after and upon such frivolous allegations as all men being debarred a few days, because albeit no See to be, at the top, mere moon-shine ; and at clerk, yet he would not take it without the bethe bottom, villany unmixed.

nefit of bis clergy, viz. the council's explanaAfter clearing these things, the earl, it tion, was yet thereafter admitted without the heems, intended to bave addressed himself to warrant of the council's act : but all this in the his majesty's advocate in particular, and to case of so many other was right and good.

innocence

VOL. Vill.

3R

Further the council expressly declare the earl today's debate, resolved that same night to give be guilty, before he had ever said one word in judgment upon it, they sent for the lord Nain his own defence. Thereafter some of them one of their number, an old and infirm man, become his assizers, and others of them wit- who being also a lord of the session, is so denesses against him; and after all, they do of cayed through age, that be bath not for a new concern themselves, by a second letter to considerable time, been allowed to take his his majesty (w herein they assert, that after full torn, in the outer-house (as they call it) where debate, and clear probation, he was found guilty they judge lesser causes alone : but notwith: of treason, &c.) to have a sentence past against standing both his age, and infirmity, and him, and that of so high a nature, and so that he was gone to bed, he was raised and dreadsula consequence, as suffers no person to brought to the court, to consider a debate

, be unconcerned, far less their lordships his a great deal whereof he had not heard, in full judges, who upon grounds equally just, and, court; and withal, as is informed, while which is more, already predetermined by them the clerk was reading some of it fell of new selves, may soon meet with the same measure, asleep. not only as concealers of treason, but upon the It was also remarked, that the lords of least pretended disobedience or non-compliance jasticiary being, in all, five, viz. the lord Nairn with any act of parliament: and, after all, must above-mentioned, with the lords Collintom, infallibly render an account to God Almighty. Newtoun, Hirkhouse, and Forret, the libel was He bids them therefore lay their hands to their found relevant only by the odds of three hearts, and whatever they shall judge, he is two, viz, the lord Nairn aforesaid, the ford assured that God knows, and he hopes all un. Newtoun, since made president of the session, Niassed men in the world will, or may know, and the lord Forret, both well enough known, he is neither guilty of treason, nor any of the against the lord Collintoun, a very inge, crimes libelled. He says he is glad how many nious gentleman, and a true old cavalier, and out-do him in asserting the true Protestant re- the lord Hirkhouse, a learned and upright ligion, and their loyalty to his majesty ; only, judge: as for the lord justice general, who he adds, if he could justify himself to God, as was also present, and presided, his rote, ache can to his majesty, he is sure he might according to the constitution of the court, was not count himself the happiest man alive. But asked. yet, seeing he bath a better hope in the mercy But to return to my Narrative, the carl, as I of God through Jesus Christ, he thereupon bave already told you, did not think fit, for rests whether he finds justice here on earth, or reasons that you shall hear, to stay till his manot. He says, he wiil add nothing to move jesty's return came to the council's last letter, them either to tenderness or pity: he knows but, taking his opportunity, made his escape that not to be the place, and pretends to neither out of the castle of Edinburgh, upon Tuesday from them; He pleads his innocence, and the 20th of December, about eigbt at night

, craves justice, leaving it to their lordships to and, in a day or two after, came bis majesty's consider not so much his particular case, as Answer here subjoined. what a preparative it may be made, and what may be its conseqnences : And if all he bath The King's Answer to the Council's LETTER. said, do neither convince, nor persuade them to alter their judgment, yet he desires them to

December 18, 1681. consider, whether the case do not, at least, de

• Most dearly, &c. having this day receivel serve to be more fuly represented, and left to your letter of the 14th instant, giving an achis majesty's widom and justice, seeing that

count that our advocate having been ordered if the natier pass upon record for treason, it: by you to insist in that process raised at our is undoubred, that hundreds of the best, and

• instance against the Earl of Argyle, he was, who think themselves most innocent, may, by |

after full debate and clear probation, found the same methods, tail under the like condeni

guilty of treason, and leasing-making, lenation, whenever the king's advocate shall be

* twixt us, our parliament, and our people, and thereto prompted

the reproaching our laws and acts of parliaAnd thus you have a part of what the earl standing of what was ordered by us in our

* ment: we have now thought fit, notwithintended to lave said, before pronouncing sentence, if he had not made his escape before the hereby to authorize you to grant a warrant to

letter to you of the 13th of November last

, are still in his own breast, as only proper to be of our justice court,

for proceeding to promo day: yet some things I perceive by his notes our justice general, and the remanent judges said to bis majesty. J find several quotations nounce a sentence, upon the verdict of the out of the advocate's printed books, that, it seems, he was to make some use of: but, our express pleasure, and we do hereby me

jury, against the said earl ; nevertheless it is seeing it would have been too great an interruption to have applied them to the places de- 1:quire you, to take care, that all execution of sigued, I have subjoined them together

, leaving | fit to declare our

further pleasure in this affair: them to the advocate's own, and all men's consideration.

' for doing whereof, &c.' It was by some remarked, that when the Which Answer being read in council on the

jusuciary, after the ending of the first Thursday, and the court of justiciary,

C. R.

ding to it's last adjournment, being to meet | given judgment, and the assize returned their upon the Friday, after a little hesitation in verdict, so that nothing remained but the pro, council, whether the court of justiciary could nouncing of sentence, it was absurd to think proceed to the sentence of forfaulture against that it should be in the power of the party, the earl, he being absent, it was resolved in the thus accused, and found guilty, by liis escape affirmative; and what were the grounds urged, to frustrate justice, and withdraw himself from either of hesitation or resolution, I cannot pre- the punishment he deserved. But on the other cisely say, there being nothing on record that hand it was pleaded for the earl ; that first, it I can learn. But that you may have a full and was a fundamental rule, that uutil once the cause satisfying account, I shall briefly tell you what were concluded, no sentence could be pro was ordinarily discoursed, a part whereof 1 nounced : next that it was a sure maxim in also find in a petition given in by the countess law, that in criminal actions there neither is nor of Argyle to the lords of justiciary, before pro- can be any other conclusion of the cause than nouncing sentence, but withont any Answer or the party's presence and silence ; so that, after effect. It was commonly said, that by the old all that had past, the ear) had still freedom to law, and custom, the court of justiciary could add what he thought fit in his own defence, no more in the case of treason than of any before pronouncing sentence, and therefore the other crime proceed further against a person lord of justiciary could no more proceed to sennot compearing, and absent, than to declare bim tence against him being escaped, than if he had out-law and fugitive: and that, albeit it be sin- been absent from the beginning, the cause begular, in the case of treason, that the trial may ing in both cases equally not concluded, and go on, even to a final sentence, though the the principle of law uniformly the same, viz. prarty be absent, yet such trials were only pro- that in criminals (except in cases excepted) no per to, and always reserved for parliaments : final sentence can be given in absence: for, as and that so it had been constantly observed the law, in case of absence from the beginning, until after the rebellion in the year 1666: but doth hold that just temper as neither to suffer there being several persons notourly engaged the contumacious to go altogether unpunished, in that rebellion, who had escaped, and thereby nor, on the other hand, finally to condemn a withdrawn themselves from justice, it was party unheard. And therefore doth only dethought, that the want of a parliament, for the clare him fugitive, and there stops : so in the time, ought not to afford them any immunity ; case of an eseape, before sentence, where it and therefore it was resolved by the council, cannot be said the party was fully heard, and with advice of the lords of session, that the the cause concluded, the law doth not distincourt of justiciary should be summoned, and to guish, nor can the parity of reason be refused. proceed to trial, and sentence, against these Admitting then that the cause was so far ad. absents, whether they compeared or not, and so vanced, against the earl, that he was found it was done : only because the thing was new, guilty ; yet, 1. This is but a declaring of what and indeed an innovation of the old custom, to the law doth as plainly presume against the make all sure, in the first parliament held party absent from the beginning, and consethereafter, in the year 1669, it was thought quently, of itself, car operate no furtber. 2dly, fit to confirm these proceedings of the justiciary The finding of a party guilty is no conclusion in that point, and also to make a perpetual sta- of the cause. And, 3dly, as it was never seen tute, that, in case of open rebellion, and rising nor heard that a party was condemned in abin arms against the king and government, the sence (except in excepted cases) whereof the treason, in all time coming, might, by an order earl’s is none, so he having escaped and the cause from his majesty's council, be tried, and the remaining thereby unconcluded, the general actors proceeded against by the lords of justi- rule did still hold, and no sentence could be ciary, even to final Stutence, whether the given against him. traitors compeared or not. This being then the It was also remembered, that the diets and present law and custom, it is apparent in the days of the justice court are peremptour ; and first place, that the earl's case, not being that that in that case, even in civil, far more in of an open rebellion, and rising in arms, is not criminal courts and causes, a citation to hear at all compreliended in the act of parliament, so sentence is constantly required : Which inducthat it is without question that it'in the begin- ed some to think, that at least the earl should ning he had not entered himself prisoner, but have been lawfully cited to hear sentence beabsented himself, the lords of justiciary could fore it could be pronounced. But it is like this not have gone further, than, upon a citation, to course, as confessing a difficulty, and occahave declared him fugitive. But others said, sioning too long a delay, was therefore not that the earl having both entered bimself pri- made use of. However, upon the whole, it soner, and compeared, and after debate having was the general opinion, that seeing the debeen found guilty, before he made his escape, nooncing the earl tugitive would bave wrought the case was much altered. And whether the much more in law than all that was commonly court could, notwithstanding of the earl's in- said, at first, to be designed against him : And tervening escape, yet go on to sentence, was that his case did appear every way so favourstill debatable; for it was alledged for the af-able, that impartial men still wondered how it firnative, that seeing the earl had twice com- came to be at all questioned, it had been better peared, and that, after debate, the court had to have sisted the process, with his escape, and taken the ordinary course of law, without mak- some of his well wishers, thought he had tos ing any more stretches.

lightly abandoned a fair estate, and the proba. But, as I have told you, when the Friday ble expectation he might have had of his macame, the lords of justiciary, without any res- jesty's favour : As also some, that were judged pect, or answer given to the petition above. his greatest adversaries, did appear very angry, inentioned, given in by the countess of Argyle as if the earl bad taken that course, on purpose to the court for a stop, pronounced sentence, to load them with the odium of a design againg first in the court, and then caused publish his life And truly, I am apt to think, it wa the same, with all solemnity, at the Mercat not only hard and uneasy for others to believe, Cross of Edinburgh.

that a person of the earl's quality, and charac• For as much as it is found by an assize that ter, should upon so slender a pretence, be des • Archibald earl of Argyle is guilty and culpa- troyed, both as to life, and fortune, but also that • ble of the crimes of Treason, Leasing-mak- he himself was slow enough to receive the in•ing, and Leasing-telling, for which he was pressions necessary to ripen bis resolution; detained within the castle of Edinburgh, out and that if a few accidents, as he says himself, of which he has now since the said verdict happening a little before his escape, had het • made his escape: Therefore the lords com- as it were opened his eyes, and brought beck, • missioners of justiciary discern and adjudge and presented to him several things past, in a . the said Archibald earl of Argyle to be exe- new light, and so made all to operate to his • cute to tie death, demained as a traitor, and final determination, he had stayed it out to the to underlie the pains of treason, and other last. punishments appointed by the laws of this Which that you may the better understand, kingdom, when he shall be apprehended, at you may here consider the several particulars,

such a time and place, and in such manner what, together with wbat he himself bath sine . as his majesty in his royal pleasure shall think told some friends, apparently occurred to bi • fit to declare and appoint: And his name, in these his second thoughts, in their following

memory, and honours, to be extinct : And order. i his arms to be riven forth, and delete out of And first you have heard, in the beginning the Books of Arms, swa that his posterity of this narrative, what was the first occasion

may never have place nor be able hereafter to of the earl's declining in his highness's favour • bruick or joyse any honour, offices, titles, You may also remember, that his majesty's * or dignities, within this realm in time coming advocate takes notice, that he debated against • and to have forfaulted, amitted, and tint, all the act enjoining the Test, in the parliament. and sundry his lands, tenements, annual- And, as I have told you, he was indeed the rents, offices, titles, dignities, tacks, steed-person that spoke against excepting the king's *ings, rowmes, possessions, goods, and geere brothers, and sons, from the oath then intended . whatsumever pertaining to him, to our sove- for securing the protestant religion, and the reign lord, to remain perpetually with his subject's loyalty, not thinking it fit to compli

highness in property. Which was pronounc- ment with a privilege where all possible cau.ed for doom, 23 Dec. 1681.'

tion appears rather to be necessary : A.ad this After the reading and publishing whereof, a reverend bishop told the earl afterwards bad the earl's coat of arins, by order of the court, downright tired the kiln. W bat thereafter - was also torn and ranversed, both in the court happened in parliament, and how the earl was and at the Mercat-cross : Albeit some thought always ready to have laid all his offices that this was rather a part of the execution, at his majesty's feet : And how he was which bis majesty's letter discharges, than a content, in council, to be held a refuser of the Lecessary solemnity, in the publication ; and Test, and thereby incur an entire deprivation

dvocate himself, says, p. 61, of his Print- of all public trust, is above fully declared ; and riminals, that it should only be practised only here remembered, to shew what reasca me crime of perduellion, but not in other the eart had, from his first coming to Edin. ons.

burglı, in the end of October, to think that Reasons and Motives of the Earl's Es- something else was intended against hita tban cape, with the Conclusion of the whole and jurisdictions. And yet such was his assure

the simple divesting him of his employments NARRATIVE.

ance of his innocence, that when ordered by The earl's escape was at first a great sur the council to enter his person in prison under prise, both to his friends and unfriends : for, the pain of treason, be entered freely, in al

-n is known that his process, in the begin- hackney coach, without either hesitation or wing, dill appear, to the less concerned, more noise, as you have heard. Ilie a piece of pageantry, than any reality ; 2ndly. The same day of the earl's commit meren by the more concerned was accounted ment, the council met, and wrote (as- I bave

polític design, to take away his offices, told you) their letter to his majesty, above set sen his power and interest: So neither down, Num. 22. Wherein they expressly

his friends fear any greater bazard, charge him with reproaching, and depiraving most of his unfriends imagine them to but yet neither with perjury por treason; and more apprehensive. Whereby it fell out, a few days after, the earl wrote a letter to his won the report of his escape, many, and highness; wherein he did endeavour to remore

[graphic]

his offence, in terms that, it was said, at first but positively, affirm, That after a full debate, had given satisfaction : But yet the only return and clear probation, he was found guilty of the earl had, was a criminal summons con- treason. Wbich, all men must say, was far taining an indictment, and that before any an- better contrived to prompt his majesty to a swer was come from his majesty. And then, speedy allowance, than to give him that par$0 soon as his majesty's answer came, there ticular information of the case which his mawas a new summons sent him, with a new in- jesty's letter expressly requires, and the earl dictment, adding the crimes of treason and expected should have been performed. perjury to those of reproaching and depraving, But further, the council was commanded which were in the first libel, as you have heard to sign this letter, not simply in the orrlinary above; whereby you may perceive, how early form, but by a special command laid on every the design against the earl began to grow, and member, and the clerk appointed to go about how easily it took increase, from the least en- and get their subscriptions, telling them they couragement.

were commanded ; and complaining to the 3rdly. When the earl petitioned the council duke when any scrupled to do it. The strictfor advocates to plead for him : Albeit he peti- ness of which orders is apparent enough from tioned twice, and upon clear acts of parliament, the very subscriptions, where you may not yet he had no better answer than what you only read the names of bishops subscribing in have above set down. And when the earl's causa sanguinis, but some of the earl's friends petition, naming sir George Lockhart as his and relations who wanted courage to refuse; ordinary advocate, was read in council, his and, in effect, how many of all the members highness openly threatened, that in case sir did it willingly, is hard to say, seeing generally George should undertake for the earl, he should they excuse the deed in private. never more plead for the king, nor him. But 6thly. About a week or two before the trial, the earl taking instruments upon sir George's the earl had notice, that at a close juncto, refusal, and giving out, that he would not an- where were persons of the greatest eminency, swer a word at the bar, seeing the benefit of it was rernembered by one present, how that lawyers, according to law, was denied him ; anno 1663, the earl had been pardoned by sir George, and other lawyers, were allowed his majesty, after he had been found guilty by to assist him, but still with a grudge. Like- the earl of Middleton and that parliament. wise afterwards, they were questioned and And that then it was looked on as an error in convened before the council, for having, at the earl of Middleton, that he had not prothe earl's desire, signed their positive opinion ceeded to execution, albeit his majesty had of the case. At which time it was also said in given command to the contrary, because (as it council by his highness, that their fault was was said) it would have been but the same greater than the earl's : However, we see that thing to him. But now, adds this kind reas he was the occasion of the anger, so he hath membrancer, the case is much more easy : only found the smart of it.

now his royal highness is on the throne: it Athly. The whole process, with the judg- might have cost earl Middleton a frown, but ment of the lords of justiciary, and verdict of now it can signify nothing, but will rather be the assize, whereby the earl was found guilty, commended in his royal highness, as acting as you have seen (notwithstanding of what freely like himself. The stop of the sentence hath so plainly appeared, and was so strongly looks like a distrust; but this will vindicate pleaded in his behalf) of leasing-making, de- all, and secure all. And as the first part of the praving, and treason, is of itself a clear de- story the earl remembered well he had heard it monstration, that either the bighest punish- from the same person, An. 1664, and had rement was intended for so high a guilt; or that, ported it to the duke of Lauderdale a little at least, it was no small humiliation that some after ; so the second part being of a very well designed for him: It being equally against known dialect, could not but give the earl the reason, and prudence, setting aside the inter- deeper impressions. It was further told the est of justice, to strain things of this nature earl, at the same time when the council's letter beyond the ends truly proposed, and which, in to obtain his majesty's assent to the pronounceffect, are only the inore to be suspected, the ing sentence, and leaving all to discretion, was more they are concealed.

sent, that it was thought fit that nothing Sthly. The process being carried on to the should appear but fair weather till the very verdict of the assize, and the council being tied close. Yet was the earl so confident of his up by his majes-ey's letter, before pronouncing own innocence, and his majesty's justice, that sentence, to send a particular account to his he did not doubt but his majesty, seeing the majesty of what the earl should be found guilty process, would at least put a stop to the senof, for his majesty's full information: The tence. But after the council's letter was gone, council doth indeed dispatch away a new letter in such terms as you have seen, to seek immediately, for his majesty's leave to pro- liberty from his majesty to proceed to sentence ceed; but instead of that particular account (without either double, or abbreviate of the required by his majesty, for his full informa- process sent with it) and no doubt smooth insition, all the information was ever heard of to nuations made with it, that all designed was be sent by the council, was what is contained to humble

the earl, or clip his wings and that in the body of the letter, wherein they briefly, this letter was basted away by a fleeing pac

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