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said, or did, in this matter, was only that, when
called, nay required to take the Test, and after
leave first obtained from his highness and coun-
cil, he did in their presence, before the giving
of his oath, declare, and propose to them the
sense wherein he was willing to take it; That
this his sense neither contains, nor insinuates,
the least slander, reproach, or reflection, either
upon the king, the parliament, or any person
whatsomever; but, on the contrair, is in ef-
fect tenfold more agreeable to the words of
the Test, and meaning of the parliament that
framed it, than the explanation emitted by the
council: and was also most certainly, the first
day, by them accepted; and, when the next
day challenged, by him offered to be retracted,
and refused to be signed: That the whole in-
dictment, and more especially that part of it
about the treason, is a mere rhapsody of the most
irrational, absurd, and pernicious consequences,
that ever the sun beheld, not only forcing the
common rules of speech, charity, and hu-
manity; but tranversing all the topics of law,
reason, and religion, and threatning no less, in
the earl's person, than the ruin of every
man's fortune, life, and honour; That the
earl's defences, and grounds of exculpation,
were most pregnant and unanswerable, and
either in themselves Rotour, or offered to be in-
stantly verified. And lastly, that the aggrava-
tions pretended against him do either directly
make for him, or most evidently discover the
restless malice of his implacable enemies:
Shall our gracious king, who not only clearly
understands right and hates oppression, but also
to all his other excellent qualities, hath by his
gentleness and clemency, even towards his
enemies, added that great character of good-proach on either person or thing.
ness, upon vain and false insinuations, and un-
reasonable and violent stretches, not only take
away the life of an innocent person, but of one
who himself and his family (be it said without
disparagement) have for a longer time, and more
faithfully, and signally served his majesty and
the crown, than any person, or family of his
degree and quality, of all his persecutors, can
pretend to ? Shall his numerous family, hope-
ful children, his friends and creditors, all be de-
stroyed? Shall both former services be forgot,
innocence oppressed, and all rules of justice,
and laws of society and humanity for his sake
overturned? Shall not only the earl be cut off,
and his noble and ancient family extinguished,
but his blood and memory tainted with as black
and horrible a stain, as if he had conspired with
Jacques Clement, Ravillack, the gunpowder
miscreants, the bloody Irish rebels, and all the
other most wicked and heinous traitors of that
gang? And all this for a mere imaginary crime
whereof it is most certain, that no man living
hath, or can have, the least real conviction,
and upon such frivolous allegations as all men
see to be, at the top, mere moon-shine; and at
the bottom, villany unmixed.

have told him, that he had begun very time-
ously in parliament to fall first on his heritable
jurisdictions, and then upon his estate, and that
now he was fallen upon his life and honour,
whereby it was easy to divine that more was
intended, from the beginning, than the simple
taking away of his offices: seeing that some
of them, on his refusing the Test, were taken
away by the certification of the act of parlia-
ment, and that those that were heritable he offer-
ed in parliament, to present and surrender to his
majesty on his knee, if his maejsty, after hear-
ing him, should think it fit; only he was not
willing to have them, torn from him, as hath
been said; and if that were all were designed,
as was at first given out, the advocate need not
have set him on high, as Naboth, and accuse
him as a blasphemer of God and the king.

Then turning his speech to the lords of justiciary, he thought to have desired that they would yet seriously consider his words, in their true sense and circumstance, his own explanation of his explication, and especially the foregoing matter of fact to have been laid bebefore them, with his defences, and grounds of exculpation; as also have told them, that they could not but observe how that he was singled out amongst thousands, (against whom much more than all he is charged with could be alledged) and that they must of necessity acknowledge (if they would speak out their own conscience) that what he had said was spoke in pure innocence, and duty, and only for the exoneration of himself, as a christian, and one honoured to be of his majesty's privy council (where he was bound, by his oath, to speak truth freely) and not to throw the smallest re

After clearing these things, the earl, it seems, intended to have addressed himself to his majesty's advocate in particular, and to

VOL. VIII.

Adding,

that he was loath to say any thing that looks like a reflection upon his majesty's privy-council; but if the council can wrong one of their own number, he thought he might demand, if he had not met with hard measure? For first he was pressed, and persuaded to come to the council; then they receive his explanation, and take his oath, then they complain of him to his majesty, where he had no access to be heard; and by their letter, under their hands affirm, that they had been careful not to suffer any to take the Test with their own explanations, albeit that they had allowed a thing very like it, first to earl Queensberry, then to the clergy: And the president, now chancellor, had permitted several members of the college of justice to premise, when they swear the Test, some one sense, and some another, and some nonsense, as one saying he took it in sano sensu; another making a speech that no man understood; a third, all the time of the reading, repeating, Lord have mercy upon me miserable sinner: Nay, even an advocate, after being debarred a few days, because albeit no clerk, yet he would not take it without the benefit of his clergy, viz. the council's explanation, was yet thereafter admitted without the warrant of the council's act: but all this in the case of so many other was right and good. 3 R

judgment upon it, they sent for the lord Nairn one of their number, an old and infirm man, who being also a lord of the session, is so decayed through age, that he hath not for a considerable time, been allowed to take his turn, in the outer-house (as they call it) where they judge lesser causes alone: but notwithstanding both his age, and infirmity, and that he was gone to bed, he was raised and brought to the court, to consider a debate, a great deal whereof he had not heard, in full court; and withal, as is informed, while the clerk was reading some of it fell of new asleep.

It was also remarked, that the lords of justiciary being, in all, five, viz. the lord Nairn above-mentioned, with the lords Collintoun, Newtoun, Hirkhouse, and Forret, the libel was found relevant only by the odds of three to two, viz. the lord Nairn aforesaid, the lord Newtoun, since made president of the session, and the lord Forret, both well enough known, against the lord Collintoun, a very inge nious gentleman, and a true old cavalier, and the lord Hirkhouse, a learned and upright judge as for the lord justice general, who was also present, and presided, his vote, according to the constitution of the court, was not asked.

Further the council expressly declare the earl to | day's debate, resolved that same night to give be guilty, before he had ever said one word in his own defence. Thereafter some of them become his assizers, and others of them witnesses against him; and after all, they do of new concern themselves, by a second letter to his majesty (wherein they assert, that after full debate, and clear probation, he was found guilty of treason, &c.) to have a sentence past against him, and that of so high a nature, and so dreadful a consequence, as suffers no person to be unconcerned, far less their lordships his judges, who upon grounds equally just, and, which is more, already predetermined by themselves, may soon meet with the same measure, not only as concealers of treason, but upon the least pretended disobedience or non-compliance with any act of parliament: and, after all, must infallibly render an account to God Almighty. He bids them therefore lay their hands to their dearts, and whatever they shall judge, he is Assured that God knows, and he hopes all unMiassed men in the world will, or may know, he is neither guilty of treason, nor any of the crimes libelled. He says he is glad how many out-do him in asserting the true Protestant religion, and their loyalty to his majesty; only, he adds, if he could justify himself to God, as he can to his majesty, he is sure he might account himself the happiest man alive. But yet, seeing he hath a better hope in the mercy of God through Jesus Christ, he thereupon rests whether he finds justice here on earth, or not. He says, he will add nothing to move them either to tenderness or pity: he knows that not to be the place, and pretends to neither from them; He pleads his innocence, and craves justice, leaving it to their lordships to consider not so much his particular case, as what a preparative it may be made, and what may be its consequences: And if all he hath said, do neither convince, nor persuade them to alter their judgment, yet he desires them to consider, whether the case do not, at least, deserve to be more fully represented, and left to his majesty's widom and justice, seeing that if the matter pass upon record for treason, it is undoubted, that hundreds of the best, and who think themselves most innocent, may, by the same methods, fail under the like condenination, whenever the king's advocate shall be thereto prompted.

But to return to my Narrative, the earl, as I have already told you, did not think fit, for reasons that you shall hear, to stay till his majesty's return came to the council's last letter, but, taking his opportunity, made his escape out of the castle of Edinburgh, upon Tuesday the 20th of December, about eight at night, and, in a day or two after, came his majesty's Answer here subjoined.

The King's ANSWER to the Council's LETTER.
December 18, 1681.

C. R.

your letter of the 14th instant, giving an aeMost dearly, &c. having this day received 'count that our advocate having been ordered by you to insist in that process raised at our 'instance against the Earl of Argyle, he was, guilty of treason, and leasing-making, be'after full debate and clear probation, found twixt us, our parliament, and our people, and 'the reproaching our laws and acts of parlia And 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 have said, before pronouncing sen-letter to you of the 15th of November last, tence, if he had not made his escape before the day: yet some things I perceive by his notes are still in his own breast, as only proper to be said to his majesty. I find several quotations out of the advocate's printed books, that, it seems, he was to make some use of; but, seeing it would have been too great an interruption to have applied them to the places designed, I have subjoined them together, leaving them to the advocate's own, and all men's consideration.

It was by some remarked, that when the justiciary, after the ending of the first

hereby to authorize you to grant a warrant to of our justice court, for proceeding to pro'our justice general, and the remanent judges nounce a sentence, upon the verdict of the our express pleasure, and we do hereby re 'jury, against the said earl; nevertheless it is 'quire you, to take care, that all execution of fit to declare our further pleasure in this affair the sentence be stopped, until we shall think for doing whereof, &c.'

Which Answer being read in council on the Thursday, and the court of justiciary, accor

law, that in criminal actions there neither is nor can be any other conclusion of the cause than the party's presence and silence; so that, after all that had past, the earl had still freedom to add what he thought fit in his own defence, before pronouncing sentence, and therefore the lord of justiciary could no more proceed to sentence against him being escaped, than if he had been absent from the beginning, the cause being in both cases equally not concluded, and the principle of law uniformly the same, viz. that in criminals (except in cases excepted) no final sentence can be given in absence: for, as the law, in case of absence from the beginning, doth hold that just temper as neither to suffer the contumacious to go altogether unpunished, nor, on the other hand, finally to condemn a party unheard. And therefore doth only declare him fugitive, and there stops: so in the case of an escape, before sentence, where it cannot be said the party was fully heard, and the cause concluded, the law doth not distinguish, nor can the parity of reason be refused. Admitting then that the cause was so far advanced, against the earl, that he was found guilty; yet, 1. This is but a declaring of what the law doth as plainly presume against the party absent from the beginning, and consequently, of itself, can operate no further. 2dly, The finding of a party guilty is no conclusion of the cause. And, 3dly, as it was never seen nor heard that a party was condemned in absence (except in excepted cases) whereof the earl's is none, so he having escaped and the cause remaining thereby unconcluded, the general rule did still hold, and no sentence could be given against him.

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 his 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 until once the cause satisfying account, I shall briefly tell you what were concluded, no sentence could be prowas ordinarily discoursed, a part whereof Inounced: next that it was a sure maxim in also find in a petition given in by the countess of Argyle to the lords of justiciary, before pronouncing sentence, but without any Answer or effect. It was commonly said, that by the old law, and custom, the court of justiciary could no more in the case of treason than of any other crime proceed further against a person not compearing, and absent, than to declare bim out-law and fugitive: and that, albeit it be singular, in the case of treason, that the trial may go on, even to a final sentence, though the party be absent, yet such trials were only proper to, and always reserved for parliaments: and that so it had been constantly observed until after the rebellion in the year 1666: but there being several persons notourly engaged in that rebellion, who had escaped, and thereby withdrawn themselves from justice, it was thought, that the want of a parliament, for the time, ought not to afford them any inmunity; and therefore it was resolved by the council, with advice of the lords of session, that the court of justiciary should be summoned, and to proceed to trial, and sentence, against these absents, whether they compeared or not, and so it was done only because the thing was new, and indeed an innovation of the old custom, to make all sure, in the first parliament held thereafter, in the year 1669, it was thought fit to confirm these proceedings of the justiciary in that point, and also to make a perpetual statute, that, in case of open rebellion, and rising in arms against the king and government, the treason, in all time coming, might, by an order from his majesty's council, be tried, and the actors proceeded against by the lords of justiciary, even to final entence, whether the 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 comprehended in the act of parliament, so sentence is constantly required: Which inducthat it is without question that if in the begin-ed some to think, that at least the earl should ning he had not entered himself prisoner, but absented himself, the lords of justiciary could not have gone further, than, upon a citation, to have declared him fugitive. But others said, that the earl having both entered himself prisoner, and compeared, and after debate having been found guilty, before he made his escape, the case was much altered. And whether the court could, notwithstanding of the earl's intervening escape, yet go on to sentence, was still debatable; for it was alledged for the affirmative, that seeing the earl had twice compeared, and that, after debate, the court had

have been lawfully cited to hear sentence before it could be pronounced. But it is like this course, as confessing a difficulty, and occasioning too long a delay, was therefore not made use of. However, upon the whole, it was the general opinion, that seeing the denouncing the earl fugitive would have wrought much more in law than all that was commonly said, at first, to be designed against him: And that his case did appear every way so favourable, that impartial men still wondered how it came to be at all questioned, it had been better to have sisted the process, with his escape, and

lightly abandoned a fair estate, and the probable expectation he might have had of his ma

taken the ordinary course of law, without mak- | some of his well wishers, thought he had too ing any more stretches. But, as I have told you, when the Friday came, the lords of justiciary, without any res-jesty's favour: As also some, that were judged pect, or answer given to the petition above mentioned, given in by the countess of Argyle to the court for a stop, pronounced sentence, first in the court, and then caused publish the same, with all solemnity, at the Mercat Cross of Edinburgh.

his greatest adversaries, did appear very angry, as if the earl had taken that course, on purpose to load them with the odium of a design against his life And truly, I am apt to think, it was not only hard and uneasy for others to believe, 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 desArchibald 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 im ing, and Leasing-telling, for which he was pressions necessary to ripen his 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 not 'made his escape: Therefore the lords com- as it were opened his eyes, and brought back, '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 the 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 kingdom, when he shall be apprehended, at 'such a time and place, and in such manner as his majesty in his royal pleasure shall think 'fit to declare and appoint: And his name, memory, and honours, to be extinct: And his arms to be riven forth, and delete out of the Books of Arms, swa that his posterity may never have place nor be able hereafter to bruick or joyse any honour, offices, titles, or dignities, within this realm in time coming and to have forfaulted, amitted, and tint, all and sundry his lands, tenements, annualrents, offices, titles, dignities, tacks, steedings, rowmes, possessions, goods, and geere whatsumever pertaining to him, to our sovereign lord, to remain perpetually with his highness in property. Which was pronounced for doom, 23 Dec. 1681.

After the reading, and publishing whereof, the earl's coat of arms, by order of the court, -was also torn and ranversed, both in the court and at the Mercat-cross: Albeit some thought that this was rather a part of the execution, which his majesty's letter discharges, than a cessary solemnity, in the publication; and dvocate himself, says, p. 61, of his Printriminals, that it should only be practised me crime of perduellion, but not in other

Which that you may the better understand, you may here consider the several particulars, that, together with what he himself hath since told some friends, apparently occurred to bim in these his second thoughts, in their following order.

And first you have heard, in the beginning of this narrative, what was the first occasion of the earl's declining in his highness's favour: You may also remember, that his majesty's advocate takes notice, that he debated against the act enjoining the Test, in the parliament. And, as I have told you, he was indeed the person that spoke against excepting the king's brothers, and sons, from the oath then intended for securing the protestant religion, and the subject's loyalty, not thinking it fit to compli ment with a privilege where all possible caution appears rather to be necessary: And this a reverend bishop told the earl afterwards bad downright fired the kiln. What thereafter happened in parliament, and how the earl was always ready to have laid all his offices at his majesty's feet: And how he was content, in council, to be held a refuser of the Test, and thereby incur an entire deprivation of all public trust, is above fully declared; and only here remembered, to shew what reason the earl had, from his first coming to Edinburgh, in the end of October, to think that the simple divesting him of his employments something else was intended against hita than and jurisdictions. And yet such was his assur 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, is is known that his process, in the begin ing, did appear, to the less concerned, more Like a piece of pageantry, than any reality; even by the more concerned was accounted politic design, to take away his offices, sen his power and interest: So neither

[graphic]

REASONS and MOTIVES of the Earl's Es-
cape, with the Conclusion of the whole

his friends fear any greater hazard, most of his unfriends imagine them to more apprehensive. Whereby it fell out, pon the report of his escape, many, and

the pain of treason, he entered freely, in an hackney coach, without either hesitation or noise, as you have heard.

2ndly. The same day of the earl's commit ment, the council met, and wrote (as-I bave told you) their letter to his majesty, above set down, Num. 22. Wherein they expressly charge him with reproaching, and depraving but yet neither with perjury nor treason; and a few days after, the earl wrote a letter to his highness; wherein he did endeavour to remove

his offence, in terms that, it was said, at first had given satisfaction: But yet the only return the earl had, was a criminal summons containing an indictment, and that before any answer was come from his majesty. And then, so soon as his majesty's answer came, there was a new summons sent him, with a new indictment, adding the crimes of treason and perjury to those of reproaching and depraving, which were in the first libel, as you have heard above; whereby you may perceive, how early the design against the earl began to grow, and how easily it took increase, from the least encouragement.

3rdly. When the earl petitioned the council for advocates to plead for him: Albeit he petitioned twice, and upon clear acts of parliament, yet he had no better answer than what you have above set down. And when the earl's petition, naming sir George Lockhart as his ordinary advocate, was read in council, his highness openly threatened, that in case sir George should undertake for the earl, he should never more plead for the king, nor him. But the earl taking instruments upon sir George's refusal, and giving out, that he would not answer a word at the bar, seeing the benefit of lawyers, according to law, was denied him ; sir George, and other lawyers, were allowed to assist him, but still with a grudge. Like wise afterwards, they were questioned and convened before the council, for having, at the earl's desire, signed their positive opinion of the case. At which time it was also said in council by his highness, that their fault was greater than the earl's: However, we see that as he was the occasion of the anger, so he hath only found the smart of it.

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4thly. The whole process, with the judgment of the lords of justiciary, and verdict of the assize, whereby the earl was found guilty, as you have seen (notwithstanding of what hath so plainly appeared, and was so strongly pleaded in his behalf) of leasing-making, depraving, and treason, is of itself a clear demonstration, that either the highest punishment was intended for so high a guilt; or that, at least, it was no small humiliation that some designed for him: It being equally against reason, and prudence, setting aside the interest of justice, to strain things of this nature beyond the ends truly proposed, and which, in effect, are only the more to be suspected, the more they are concealed.

but positively, affirm, That after a full debate, and clear probation, he was found guilty of treason. Which, all men must say, was far better contrived to prompt his majesty to a speedy allowance, than to give him that particular information of the case which his majesty's letter expressly requires, and the earl expected should have been performed.

But further, the council was commanded to sign this letter, not simply in the ordinary form, but by a special command laid on every member, and the clerk appointed to go about and get their subscriptions, telling them they were commanded; and complaining to the duke when any scrupled to do it. The strictness of which orders is apparent enough from the very subscriptions, where you may not only read the names of bishops subscribing in causa sanguinis, but some of the earl's friends and relations who wanted courage to refuse; and, in effect, how many of all the members did it willingly, is hard to say, seeing generally they excuse the deed in private.

6thly. About a week or two before the trial, the earl had notice, that at a close juncto, where were persons of the greatest eminency, it was remembered by one present, how that anno 1663, the earl had been pardoned by his majesty, after he had been found guilty by the earl of Middleton and that parliament. And that then it was looked on as an error in the earl of Middleton, that he had not proceeded to execution, albeit his majesty had given command to the contrary, because (as it was said) it would have been but the same thing to him. But now, adds this kind remembrancer, the case is much more easy: now his royal highness is on the throne: it might have cost earl Middleton a frown, but now it can signify nothing, but will rather be commended in his royal highness, as acting freely like himself. The stop of the sentence looks like a distrust; but this will vindicate all, and secure all. And as the first part of the story the earl remembered well he had heard it from the same person, An. 1664, and had reported it to the duke of Lauderdale a little after; so the second part being of a very well known dialect, could not but give the earl the deeper impressions. It was further told the earl, at the same time when the council's letter to obtain his majesty's assent to the pronouncing sentence, and leaving all to discretion, was sent, that it was thought fit that nothing should appear but fair weather till the very close. Yet was the earl so confident of his own innocence, and his majesty's justice, that he did not doubt but his majesty, seeing the process, would at least put a stop to the sentence. But after the council's letter was gone, in such terms as you have seen, to seek

5thly. The process being carried on to the verdict of the assize, and the council being tied up by his majesty's letter, before pronouncing sentence, to send a particular account to his majesty of what the earl should be found guilty of, for his majesty's full information: The council doth indeed dispatch away a new letter immediately, for his majesty's leave to pro-liberty from his majesty to proceed to sentence ceed; but instead of that particular account required by his majesty, for his full information, all the information was ever heard of to be sent by the council, was what is contained in the body of the letter, wherein they briefly,

(without either double, or abbreviate of the process sent with it) and no doubt smooth insinuations made with it, that all designed was to humble the earl, or clip his wings: and that this letter was hasted away by a fleeing pac

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