Law to which upon occasion all particular Acts must bow what else can be alledged to justifie the throwing out the first estate of Parliament the passing by the Magistrates then in possession in making of their Elections and allowing some who had been sentenced for Treason to sit and Vote in Parliament without ever examining the grounds upon which they had been Condemned These who think that the necessity of State can justifie such Proceedings which must be their only Plea ought to be very careful how they blame their Predecessors for Severities which some Mens ungovernable humours necessitated them to We must also be allowed to admire how those who so eminently comply'd with the Dispencing Power in taking an Indulgence from the Papists and who magnified King Iames upon that account as the best of Kings that ever Reign'd should so snarle at us who in a Parliament at which not one of them assisted refused to take away the Penal Laws made against Popery whilst many of us resign'd our Places willingly in defence of those Laws Or how those who did sit in Parliament and Judicatures with us consenting to and approving what was done in those Reigns should now Countenance such Reproaches against us it being most undeniable that there 's but very few who deserved any Employment or had any sence who did not concur in most of those things for which we are now so severely censured and there are very few of any Note or Consideration either in the last Convention or present Parliament who have not been accessory to many of the things now complain'd of We do therefore in the last place recommend to all disinteressed Men to consider that the Men of the greatest Quality Learning Experience Parts and Estates being then in the Government and upon Oath it is to be presumed that love to the Salvation of their Souls respect to their Honour and care of their Families and Posterity would have obliged them to shun and avoid all those Severities with which they are now most unjustly charged and in common Charity to believe that what was then done by those in Power was design'd only for the Security of the Protestant Religion against those Factions and Schisms and to preserve the Country from those Civil Wars and Distractions which had destroyed both in the last Age and threatned to do the like in this notwithstanding all the Pains and Care that was taken to reduce the Authors of those Mischiefs to live peaceably and quietly We foreseeing very clearly that one Months Civil War would occasion more ruine and destruction to the Country than possibly the Severities of a whole Reign could do The only Design of this Paper being to defend our selves without offending others and rather to cement than widen Differences we wish that all sides may busie themselves so much in setling their Native Country that they may forget injuries which the most impartial cannot think so great in the Reign of King Ch. the Second as those that were committed by the Complaining Party in the Reign of K. Ch. the First and we should be sorry they had been ballanced But sure they will be most unpardonable who begin again upon a new score for after that nothing can be expected but that all Parties will run in an endless Circle of Severities Which God of his infinite Mercy avert A TRUE ACCOUNT OF THE Forms us'd in pursuits of Treason ACCORDING TO The Law of Scotland By which the JUSTICE of that Nation may be known to mis-informed Strangers Written Anno 1690. IT is much to be admired That such as never read our Law revis'd our Records nor were ever employ'd as Iudges or Advocats in our Criminal Courts should adventure to condemn the Proceedings of those who for many years have made that part of our Law their constant Study who were upon Oath and knew that their Posterity should be judged by their Decisions But to inform all men more particularly and to set things in their true light I shall represent the Legal way of Procedure in Cases of Treason which is the only Crime to which this Jealousie may reach and then prove that the King's Advocat cannot prejudge the party accus'd in any step of the process Treason may be pursued either at the instance of a private Informer or at the instance of the King's Advocat who is ratione Officii Calumniator Publicus If a private person inform then his Name must be exprest to the end he nor none of his Relations may be us'd as Witnesses he must find Surety that he shall prove and that he shall insist as being liable in Poenam Talionis if he fail in proving the Crime When the pursuit was to be carried on for the publick Interest the King's Advocat examined the Witnesses alone but Sir George Mackenzie thinking the Advocat might have been jealous'd as too interested prevail'd to get this Examination referr'd to the Iudges who in all Nations enquire into the Grounds whereupon pursuits are to be rais'd and after the Depositions were taken and sign'd by the Iudges and Witnesses the Advocat presents them to the Privy Council and if after reading them and a full debate upon them many of the Learned Lawyers of the Nation being Privy Counsellors it be found by Vote of Council that there is sufficient ground from the Evidence to raise Process of Treason then there is an Act of Council drawn ordering the King's Advocat to insist but in this Tryal the Advocat tho a Counsellor never votes The Reason why this previous Examination is allow'd is to secure the Subjects against their being rashly and unwarrantably pursued or prosecuted without sufficient Grounds But left a Witness might have lookt upon himself as pre-engaged by this previous Deposition therefore these first Depositions were always torn and the Witnesses declared free from whatever they had formerly depos'd To strengthen the Security of the Defendant or party accused Sir George Mackenzie us'd to interpose with the Officers of State before the Depositions were brought into the Council and to represent to them his own scruples And if the Officers of State continued still of Opinion that a Process was to be rais'd or the Party accused to be proceeded against then he desired the ablest Advocats of the Nation to be called before whom the Depositions were read and if they concurr'd with the Officers of State in their Iudgment of the matters being criminal then these Advocats were Ordain'd also to concur with him in the pursuit And many of the most learn'd and most popular Advocats did concur with him in the most intricate cases as in Argyle's Iervis Wood's c. which is not to be imagin'd they would have done had they thought their Pleading in these cases any guilt or fault Tho by the Laws of England and other Nations the Defendant is allowed no Advocats to plead for him in Criminal Cases but especially not in Treason except where the Iudges can see debateable points
blamed a King's Advocat for assisting in Criminal Processes nor lies there any Action or Scandal against him any where on that account as can be proved from many hundreds of Citations of the best Laws and Lawyers but he darkens his own Cause when just who uses these to ignorant people and he lessens his own esteem who thinks he needs them amongst men of better sense The Law trusts him entirely as a Publick Servant who manages these Pursuits by Virtue of his Office and not by Malice The King's Advocat must either have a Negative over the King and all the Iudicatories by refusing to concur by which he might make the justest pursuit useless for tho he should lay down his Employment yet it would give an ill impression even of the best Cause or otherways he must be obliged to concur in which Case he can do no prejudice because Iudges are presum'd to be learned and the Advocat is still to be consider'd as too interested to have any dangerous Influence Nor can he abuse the Iury with any misrepresentation in point of Law for they are only allow'd by our Law to consider what is meer matter of Fact and whether the precise point of Law referr'd to them by the Judges be prov'd by these Depositions of the Witnesses which lye before the Jury in Writing Iudges may err in point of Law and Juries in point of Fact but neither of these are entrusted to the Advocate so that poor People are abus'd extreamly when they are informed that the King's Advocate occasioned any Mans Death Sir George might here likewise represent that in the Rebellion against K. Ch. I. many Noblemen and Gentlemen were pursued for rising in Arms by that same King's Commission by whose Authory their Iudges did sit and yet none of the Advocats of these times were ever quarrel'd with or mis-represented for debating even against their Master's Commission and Remission as will appear by the Processes of Haddo President Spotswood Marquess of Huntley Montross and hundreds of other Gentlemen but Sir Geo. needs justifie himself by no such Precedents In the third place Sir George Mackenzie may unanswerably urge that no Man who endeavoured so to lessen the Power of the King's Advocats by Acts of Parliament and Regulations can be thought to have had any inclinations to stretch it as also he may value himself for refusing to accept the King's Advocate 's place till his Predecessour resign'd it under his hand that he never informed against any Man nor suggested any pursuit that when a Pursuit was motioned he pleaded as much in private for the Defendant if the case was dubious as any of his Advocates did thereafter in the process nor did he ever shew any vehemence in the process except when he was jealous'd of Friendship to the Defendant or of love to popularity because he had so pleaded in private and no age did ever see so many thousands pardoned nor so many Indemnities granted as was in his time which as it must be principally ascribed to the extraordinary Clemency of the Kings he served so it may be in some measure imputed to the natural Byass which Sir George had to the merciful hand There is great Reason to believe that poor People are only misled by mis-informations since some in their Pamphlets clamour against the Advocate for threatning the Iury with a Process of Errour whereas all that he does is to protest for a process of Errour which is a duty imposed upon him by our Law They accuse him also for having occasioned great expences to the Countrey for keeping Witnesses unexamined whereas it appears fully from our Statutes and Practice that the examination of Witnesses is no part of his duty for the Sollicitor presents them and the Iudges only can examine them The bulk of all the processes raised in K. Charles 2. and K. Iames 7. Reigns were against such as rose in actual Rebellion at Pentland-Hills Bothwell-Bridge and Argyle 's Invasion the first were pursued by Sir Iohn Nisbet one of the best Lawyers and Country-men that ever pleaded and Sir George Mackenzie did but Copy his Libels in pursuing Men in the other two Rebellions These Indictments were founded upon the Laws of all Nations and particularly of Scotland declaring that Subjects taking Arms against the King and his Authority were Traytors All the Nobility and Gentry almost all who are in the present Government rose against them with their Swords in their hands and so were more guilty if that must be called guilt than any Judge these Proceedings were justified by many Parliaments and all the Iudicatures and England still continues to think that Monmouth's Invasion was a Rebellion so that the succeeding King's Advocates could not be blamed for pleading in defence of what others fought for and judged There were other two Classes of Men prosecuted in those times the one was of the Murderers of the Arch-Bishop of St. Andrews the other was of such as in publick Rendezvous of Rebellion as at Sanqhuar wherein they declared K. Ch. 2. to have forfeited his Right to the Crown because he had broken the Covenant which was the fundamental Contract betwixt God the King and the People and therefore they declared War against him and that it was lawful to kill all who served him Now it is left to any indifferent Reader to judge whether there needed any Eloquence to prevail with Iudges or Iurors to condemn such Rebels But to shew the Clemency of the Government Strangers would be pleased to consider that tho' above 20000 had been guilty of publick Rebellion yet 200 died not by the Criminal Court and above 150 of these might have saved their lives by saying God bless the King not that the refusing to say this was made a Crime as is villainously represented but that this easie defence was allowed under this Gâ—ntle King whose Clemency we wish may be imitated by those who cry so much out against his Cruelty and amongst the many thousands that rose with Argyle only two notorious Rebels were pitched upon by the Criminal Court to die for the example and terrour of others And I may safely say that there died not six in all the the time that Sir Geo. was Advocate except for being in actual Rebellion and for being Guilty of Assassination clearly proved nor did the Earl of Argyle himself die till he had actually invaded his native Country nor George Lermonth till it was proved that tho' he wanted Arms yet he commanded those who were in Arms to fall upon the King's Souldiers and so they were killed by his Command And what Eloquence is requisite to perswade Judges or Juries to condemn in such Crimes TO THE READER WHEN we inform Strangers of the Seditious Principles of the Scotch Presbyterians they are justly surprised that such Villanies can be practised where Humanity and Christianity are not openly and plainly renounced and therefore some of their own Authentick Papers are here subjoined which contain
A VINDICATION OF THE GOVERNMENT IN SCOTLAND During the REIGN of King Charles II. AGAINST Mis-Representations made in several Scandalous Pamphlets To which is added the Method of proceeding against Criminals as also some of the Phanatical Covenants as they were Printed and Published by themselves in that Reign By Sir GEORGE MACKENZIE Late LORD ADVOCATE There LONDON Printed for I. Hindmarsh at the Golden Ball in Cornhill 1691. A VINDICATION OF THE Government in SCOTLAND During the Reign of King CHARLES II. AGAINST Mis-representations made in several Scandalous Pamphlets THe Design of this Paper is neither to seduce others into Faction nor to make an Apologie the one being too Malicious and the other too Mean But because many honest and sincere Men have been abused by some late Misinformations whereby the Charity and Vnity of Protestants amongst themselves are much weakened therefore this Paper comes to set things in their true light by a bare Narrative which will be sufficient to reclaim those who are abus'd and to confute those malicious Authors who have endeavour'd to Reproach a whole Nation with Villanies of which none but these Authors themselves could have been guilty Because the Civil Government in Scotland was never bigot in that King's Reign therefore we shall not run back to consider Episcopacy or Presbyterie otherways than as they may concern the Civil Government Neither should we run so far back as to the Government of King Charles I. were it not to prove that these of the same persuasion who now complain were the first Aggressors and consequently what was done against them deserves rather the name of Self-defence than Persecution For clearing this it is necessary to represent that in the Year 1637 we liv'd under the most Pious and Orthodox Prince of the Age and yet a Rebellion was form'd against him as a Papist and a Tyrant by which all the Fundamental Laws were shaken and all honest Men ruin'd Neither needs there any other proof for this Assertion than the Records of Parliament General Assemblies and Iustice Court From the Records and Acts of Parliament it is undeniable that the power of nominating Judges Counsellors and all Officers of State the power of levying War and raising Taxes were usurp'd by the people Covenants were entred into by a part of the Subjects and by them impos'd imperiously upon the rest Leagues and Covenants were entred into with England Ambassadours were sent to Foreign Princes and States and even to France tho' little less terrible then than now exclaiming against the Injustice of the King justifying their taking Arms against him and therefore intreating the French Aid and Assistance The King himself was inhumanely deliver'd up to his Enemies and thereafter the Army that went in to defend his precious Life were declared Rebels all which was uncontravertedly inconsistent with the Laws of the Kingdom then standing From the Acts of the General Assembly it is clear that the Assembly 1639. refus'd to rise when dissolv'd by the King's Commissioner and most of the following Assemblies did both sit down and rise without his Warrand This Assembly threw out the Bishops and abrogated Episcopacy without Authority of Parliament tho' the Bishops were always the first of the three Estates of Parliament A new Oath was invented called the Covenant without the King's Authority and all Men Women and Children that were above ten years of age forc'd to take it and such as took it not were Excommunicated upon which all their Moveables or Chattels were Confiscated and they themselves being declar'd disobedient to the Laws were forc'd to fly The King 's Negative Voice was declared Illegal and the Acts made for assisting him in the Year Forty Eight were declar'd Void and Null by an unparallel'd Invasion the General Assembly imitating in this as in many other things the Church of Rome raised themselves above King and Parliament From the Records of the Iustice Court we find that the Estates made Advocates or Attorney Generals by their own Authority who prosecuted to death such as defended their own Houses by vertue of express Commissions from the King and such as rose in Arms for his Defence tho' they had both his Commissions and Remissions though the Iudes that Condemned them sat by vertue of that very King's Commission They not only borrowed vast Sums by meer force from private Men whom they never payed but also they were the first that brought in Free and dry Quarter Cess Excise and all these Publick burthens afterwards so much complain'd of when they were continued upon necessary Exigencies by lawful Authority we having neither formerly known Oaths nor Publick burthens under our gentle Kings against whom they so much exclaim'd as Tyrants because forsooth they kept them from being such All these Proceedings were not only condemn'd by the general Opinion of both Protestants and Papists abroad but stand yet condemned by express Acts of Parliament and by many Acts in the like Cases in Scotland and England and so nothing which can be alledged in justification of them deserves or needs an answer King Charles the Second being restored by almost the Universal consent of all the People the worst of whom grew weary of their Villanies The Parliament of Scotland being called they enquired very seriously into the occasion of such Disorders and soon found that they were all to be charged upon the Solemn League and Covenant and those who adhered thereto and therefore they endeavoured to perswade the Presbyterians to disown the Covenant all favour being promised to them upon that condition But finding that the Presbyterians generally thought themselves bound to own the Covenant the Parliament concluding that the same Men owning the same Principles would be ready upon occasion to act over again the same things therefore they by Vote which may be called unanimous seeing only four or five dissented restored Episcopacy and that so much the rather because that Government had in no age nor place forced its way into the State by the Sword but had still been brought in by the uncontraverted Magistrate without ever thrusting it self in by Violence and yet the Government did sustain Episcopacy as a part of the State but never as a Hierarchy wholly independent from it The Presbyterian Preachers had all along taught the People That as their Government was Iure Divino so the People might thereby be obliged to defend them and it under pain of Eternal Damnation even when Episcopacy was Established by Law and accordingly some of the People who retained that Principle frequented the Conventicles at which these Ministers Preacht whereupon the State fearing that the old Humour might ferment again into a Rebellion discharged under some small Penalties any above Five Strangers to meet in a Conventicle leaving thereby at once the free exercise of their Conscience in their Families and yet securing the State against such a total defection as might involve us in a New Civil-War which without doubt was all the State design'd
should perish than that the whole should go to ruin Vnitas non unus as was said by them in the E. Straffords Case and if two States of Parliament without the King were thought the best and necessary Judges of what was Salus Populi in those days much more should it be acknowledged that the King and three Estates in many subsequent Parliaments agreeing cordially together should be acknowledged to be the true Judges of what was Salus Populi in our Government especially when what they did was founded on a Series of uncontraverted Laws and upon long and deplorable experience of the Mischiefs occasion'd by that Pary Whereas they who condemn our proceedings must and do acknowledge before they Condemn us that they consider themselves as a People coming into a Country where there were no Laws and so might take any new Laws they thought fit for the present exigent A Liberty which we Poor Slaves durst never take foolishly conceiving our selves over-ruled by our Statute-Books Ancient Customs and Oaths regulating our Duty and Conscience For answering the Objections which are made against the Government I shall class them into these General Enormities with which the Government is charged and into the particular instances of its pretended Cruelty The first General Objection is That the severe Laws made against Conventicles were yet more severely put in execution by Sir Iames Turner and Sir William Ballantine and others which occasion'd the Insurrection at Pentland-hills and it is alledged that these Conventiclers came only to petition the Council not to overturn the Government To this it is answered That all rising in Arms upon any pretext whatsoever is declared Rebellion in this and all other Nations and if any should rise now in Arms because Free-quarter is taken from them against Law they would find this Government so to take it Nor can it be pretended that Justice was denied to private Petitioners but on the contrary Turner and Ballantine were laid aside which is all the State could do it being impossible to answer for all the extravagancies of Soldiers even under the most just Government From this likewise it necessarily follows that because this was no just War therefore the Learned and Worthy Sir Iohn Nisbet then King's Advocate and the Criminal Iudges were unjustly reproached for refusing to allow the defence founded on giving Quarter that being only to be allowed in Iusto Bello And it is to be remembred that this defence was not allowed to the Worthy President Sir Robert Spotswood Son to the famous Archbishop in Anno 1645 tho' the War was just on the King's side and he acted by vertue of a Commission from that very King by whose Authority the Parliament that Condemned him was called and it could not be proved by those that were taken at Pentland-hills that Quarter was granted them whereas it was clearly proved that the Council in General had discharged granting of Quarter upon the foresaid account We pass under silence here the Dreadful Slaughter of several Hundreds Killed after Free Quarter given and Surrendring of the Castle of Dunvileigh which made Lieutenant General Leslie who then commanded the Army threaten to lay down his Commission notwithstanding of a violent Sermon made before him upon these words 1 Sam. Chap. 15. v. 14. What meaneth then this bleating c. As to the sending away People to the Plantations it is answered that none were sent away but such as were taken at Bothuel-Bridge or in Argyle's Rebellion and the turning Capital Punishment into exile was an Act of Clemency not of Cruelty As to Torture it is allowed not only by the Law of our Nation but of all Nations except England and founded on the foremention'd Maxims Salus Populi c. Pereat unus potius quam Vnitas nor was it ever inflicted but where the Person tortured was evidently proved to be Guilty of Accession to the Crime and that he knew the Accomplices it being still left in his power to secure himself against Torture by confessing who were his Accomplices or by clearing himself by his Oath that he did not know them which Oath was required to free not to bind the Deponent because his Knowledge of the matter was first proved and it was still previously declared by Act of Council that nothing he was to Depone should prejudge him And those who had been in that Government were very sorry that when Torture was declared a Grievance in the last Convention Matters of high importance relating to the Government were still excepted which expos'd the Subjects to as much danger as formerly As to the Imprisoning free Leidges without giving any reason and detaining them in Prison for many Years It is answered that we have no Act for Habeas Corpus in Scotland and so these things may be accounted Severe but not Illegal and they were introduced in the late Vnhappy Presbyterian Rebellion where thousands were kept in Prison a great many years without any Crime or Hopes of Releasment but the true Reason of the frequent Imprisonments during K. Charles the 2 d's Government should only be charged on those who were Accessories to the Plots and Rebellions which occasion'd them and no Men wish'd more than we did to see those peaceable times which might allow an Act of Parliament for Habeas Corpus Another thing which occasioned these long Imprisonments was That the persons imprisoned refus'd to acknowledge the King's Authority without which they could not have been set at liberty when there was a clear Probation against them But can this be objected to Vs by those who have since Imprison'd more in one Year than we did in five As to the bringing in the Highlanders on the Western shires and taking free Quarter there it is answered that many thousands had gather'd in Field Conventicles with Arms for several Years and when these Conventicles which used to meet in several places pleas'd to join in one they could easily form an Army To prevent which the Council wrote a Letter to these Western-shires entreating them to fall upon some course for security of the Peace they returning for answer That the Peace could not be secured there without Abrogating Episcopacy The King and Council consider'd this as a Sacrificing the Laws to the Humours and Passions of private Men and such too as they had reason to think could no more be satisfied with that Concession than their Predecessours were who proceeded to ruin King Charles I. after he had parted with the Order of Episcopacy to please them and therefore the Highlanders were sent in to secure the Peace and because Mony could not be provided in haste the Council declar'd by their Act That those on whom they were quartered should be paid out of the first and readiest of the Fines owing there and the Superplus should be paid by the King nor have those who were then in the Government clamour'd so much now for a Years Free Quarter as these People did then for a
Fortnights and even during that Fortnight most men pay'd for their Quarters nor was there any more Surety sought at least from Masters and Heretors than the ordinary Surety of Law-borrows by the very style whereof any private Man may force another by the Law to secure him against all Prejudices from his Men Tennents and Servants and others of his Command Out-hounding and Raâ—ihabition And that the King had great reason to be jealous of their breaking the Peace appears fully from the Reasons above Represented and when this Surety was thereupon approv'd by Parliament by which it was Enacted that Masters should be liable eithr to remove their Tennents from their Lands or to present them to Iustice It prov'd a most advantageous Remedy for settling the Nation to the great advantage both of Master and Servant this alternative securing the Master from many hardships and ingaging his Servants to obey him as he was obliged to obey the King and keep the Peace As to the Cumulative Iurisdiction so much complain'd of because it gives the King a power to name Sheriffs and other Inferiour Iudges who may have an equal share in the Administration with those who had the sole Heretable Iurisdiction formerly whereby it is pretended the Property of the Subjects was invaded It is answered that Heretable Iurisdictions are of themselves very little to be favour'd because the Heir must be a Iudge both in Matters of Life and Fortune though he want Probity or Knowledge in the Law and the Interested Superiours or Over-Lords had thereby the unfortunate poor Vassals absolutely at their Devotion and therefore by an old Law in K. Iames the 2 ds time there was an Act made discharging all Heretable Iurisdictions without consent of Parliament and Sir Iohn Nisbet upon these and many other good Reasons advised that all the other Heretable Iurisdiction because almost all granted since that time should be Repealed and yet though these Heretable Iudges refus'd to concur in putting the Laws against Field-Conventicles and Armed Insurrections in Execution or conniv'd at them whereby they grew very formidable the Council unwilling to take away these Iurisdictions totally chose rather to name others to sit with those Iudges or to supply their absence if they refused to come but there-after S. G. M. succeeding as Advocate to prevent all Debate advis'd the bringing this point to the Parliament to the end that that procedure of the King's Council might be either Vncontravertedly Legal if acquiesc'd in or let fall if refus'd and accordingly the Parliament having pass'd it into an Act it seems great Malice and Ignorance to call this Illegal and it being founded upon such just and solid Reasons it seem'd as strange why it should be thought severe and never Lawyer spoke against it except those who had Heretable Iurisdictions It were unreasonable that the King should complain of what he consented to in Parliament in favours of his Subjects and so it must be likewise concluded unreasonable that the Subject should complain of this point which they have granted to the King especially seeing it is more in favours of the Subjects than of Him it being a strong Bulwark against great Mens oppressing of their Vassals and Inferiours and therefore I cannot see why the Inferior sort should be so dull or unreasonabe as to complain of it But notwithstanding of this Clamour and abstracting even from this Act it is still maintain'd by the Advocate that all Lawyers and particularly our Learned Craig in his Book De Feudis assert that the Superiour has still an Accumulative Iurisdiction with his Vassal as to the point of Iudging for tho' he delegate a Jurisdiction for his Conveniency yet that is not exclusive that being a quality which still adheres as Craig says however Sir George Makenzee Advocate advis'd to stop all Clamours that the Heretable Iudge might still have the Casualties so that his Property could not be said to be invaded and lest this might be drawn to the Session as is ridiculously pretended the Act is only made Relative to Iurisdictions given by his Majesty to his good Subjects which can in no sense fall under the Cognizance of the Session i. e. the Iudges As to the Act made in Council allowing Souldiers to kill such as refused to own the King's Authority It is answer'd that there being many Proclamations issued out by the Dissenters declaring That the King had forfaulted his Right by breaking the Covenant and that therefore it was lawful to kill him and those who serv'd him Many accordingly being kill'd it was thought necessary by some upon the fresh news of Murdering some of the King's Horse-Guard at Swyn-Abbey in their Beds to terfy them out of this Extravagancy by allowing the Soldiers to use them as in a War in which if any call For whom are you and the others owning that they were for the Enemy it is lawful then to kill And thus they felt their Folly and the necessary effects of their Principle and yet still it was ordered That none should be kill'd except those who were found in Arms owning that Principle of Assassination and refusing to clear themselves of their having been in Accession to the declaring of War which they had then begun nor were these kill'd but when their deliberate refusal could be proved by two Witnesses But that it may plainly appear that no more was in all this intended by the Governours than to secure the Publick Peace by terrifying those Assassines who had so manifestly invaded it Secret Orders were given that this should not last above a fortnight and that none should be kill'd except those who were found in the publickly printed List of declar'd Rebels who may be kill'd by the Laws of all Nations and but very few even of those Rebels were kill'd tho' this has been made the Foundation of many dreadful Lies This mischief was intolerable in it self and we desire to know how it could have been otherways remedied for the Law must find Cures for all Mischiefs and these who occasion'd them should of all others be least allow'd to complain After the terrour of that procedure had much cooled the Zeal of Assassination for a time it took new fire and several Proclamations for disowning the King's Authority and Murthering his Servants were posted upon all Church Doors and Mercat-Crosses so that no man who served the King could know whether or not his Murtherer was at his elbow and they had reason to look upon every place as their Scaffold Whereupon the Advocate being desired to raise Processes against some who owned those Pernicious Principles he prevailed with the Council to ask the Opinion of all the Iudges upon this Quaery viz. Whether any of his Majesties Subjects being questioned by his Majesties Iudges or Commissioners if they own a late Proclamation in so far as it does declare War against his Sacred Majesty and asserts that it is lawful to kill all those who are employed by
his Majesty refusing to answer upon Oath are thereby guilty of High Treason and are airt and part of the said Treasonable Declaration Salus Populi requiring that every one should contribute what was in his Power to the preservation of the Society and as none of the Kings Servants without this could know if he was secure of his Life so it was very easie for the person accused to clear himself if he was innocent They consider'd likewise that Law in general for the good of the People did accommodate its self to what probation could be allowed and therefore invented presumptive probation upon that account whereof there are so many instances to be seen in all Laws that it were Childish to insist on them and no man has been so just as to produce one Law or Reason to convince us of the Illegality of this Opinion and there is an express Act of Parliament penned by the Learned Sir Iohn Nisbet whereby for the same Reason such as are prosecuted for Conventicles are obliged to Swear whether they were Innocent or Guilty which does run yet higher than this Opinion There is another Opinion given by the Judges much challenged viz. That some having gone about amongst the People demanding Fifty Pound Sterling from each as a Contribution for the Earl of Argyle then forfaulted they from whom that Mony had been asked and conceal'd it were found Guilty of Treason because this was so far beyond private Charity that it would have amounted to a greater Sum than any Parliament had ever granted the King And whereas the proposal of any Assistance to a Rebel is Treasonable the Concealing of it by our Law and by the Law of Nations is undoubted Treason If the matter of Fact in these Answers had been Represented to the late Convention it cannot in Reason be thought they would have condemn'd them and if any Man will compare these Opinions of the Judges with that Grievance pretended in the late Convention and that again with the Act of Parliament they will find the matter of Fact variously represented in all the three We must likewise inform the World That no Man died upon either of these Opinions and to cut off all Debate both these forenamed Opinions of the Judges are expresly ratified by Parliament and consequently are the Sense of the Nation Before we enter upon private Processes we must complain That tho' K. Ch. having by Act of Parliament added five of the Learnedst of all his Iudges to his Iustice General and Iustice Clark in place of two Advocates who were generally but Young or Mean because they had only Fifty pounds Salary and that seldom pay'd that yet every Ignorant Scribler should presume to Reproach their Sentences and shou'd take upon them to judge the deepest Controversies in point of Law and should Dogmatically-Write of Criminal Sentences tho' they never saw a Criminal Court and be Applauded in things which every Servant about that Court knew to be Nonsence Particularly ' as that the Advocate Threatned Iuries whereas all he did was to Protest for an Assize of Error which the Laws Command and which all Advocates ever did and to this day doe Again it is as Foolishly pretended That the Advocate Prosecuted Men without Order whereas indeed he never Prosecuted any until he was Commanded by the Council who are our Grand Iury upon Oath and all their Orders are Registrated the Court likewise was so very favourable to these Criminals that they did ordinarily Name those of their own Profession Presbyterians to pass upon their Jury and sent Ministers of their own Perswasion to Reclaim them and these Iurors and Ministers seldom fail'd to Condemn them as much as the Judges did The Capital Sentences in that Court were Founded Generally upon Actual Rebellion and even as to those there was not one of a thousand Executed Nor in all Argyle's Rebellion was any Executed by their Sentence except one or two who were pitched upon as Examples to terrifie others Nor did there dye upon any Publick Account Twelve in all that Reign so Exclaim'd against as Bloody and not one Dyed for any Principle in Religion unless it be thought a Religious Principle to Dye for Actual Rebellion as to such there needs no particular Defence the very Light of Nature the common Interest of Societyes and the Laws of Nations declaring it a Crime to justifie them It is pretended That tho' the Crimes had been Legally founded yet the Probation was suspect in those times because the Depositions of Witnesses were Previously taken whereby Witnesses being once Ensnared were forced to stand by their Depositions To which it is answered that in all Nations abroad Depositions are Previously taken as is Uncontroverted by all their Criminal Writers and this is very necessary for the Good of the Subjects lest they should be Prosecuted groundlesly and this is as fit for the Good of the King or Kingdom lest such as are Guilty of Atrocious Crimes against the whole Society should escape without being Punished because Tryed when the formal and full Probation is not ready yet to prevent all mistakes the Advocate interceeded that this Trust of Examining Witnesses should not be left to the King's Advocate as it ever formerly had been but should be lodged in the Judges and that lest their Depositions should be any Tye upon them the Judges with Consent of the Advocate ordered that the Depositions should be torn before they Deposed in Iudgment and they were allow'd either to Correct or Pass from their former Depositions as they pleas'd And whereas formerly the King's Advocate had the Naming of the Jury it is now lodged by Act of Parliament in the Judges Nor was there ever any Witnesses suspected except only in Chesnock's Case wherein the Depositions were true and albeit the Witnesses afterwards Asserted upon Oath on their Knees That their first Deposition was very true and that they were only Frighted and Confounded in the Second yet the Council would not resume the Process and thereupon he was Absolv'd in the rest the Probation was but too clear for beside all the Legal Probation most of those who Died owned and Gloried in their Crimes when they Died Exhorting others to imitate them in their Disowning the King and Rebelling against him and many of them Exhorted the People to Kill all such as oppos'd their Principles assuring them that to Kill Malignants was acceptable to God Strangers would likewise be pleas'd to be inform'd That our Law allows the Party Accused a Liberty to call in Witnesses who may Depose upon Oath for Him against the King which the Law of England does not and this kind of Exculcapation was never allow'd till the Reign of King CHARLES II. The first Act which was the Warrant thereof having been made by Sir Iohn Cunningham and Sir George Mackenzie when they were Criminal Iudges and this was never refus'd to the Persons Accused albeit they brought in frequently Witnesses who took very great Latitudes to
be design'd against the Earl because he was earnestly entreated to pass from the Paper containing his Declaration before the Process should commence and after all the Captain of the Castle was allow'd not to keep him strictly and as it is undeniable That the King allowed the Earl's Estate to his Creditors and that his Children got a far larger share of it than if he had dy'd in his Bed so it can be prov'd it was fully resolv'd that he should not die nor did he die till he had Invaded his Native Countrey by open War whereby the Parliament being convinc'd by this Open Act that he had very clearly design'd by the former Caution in his Explicatory Declaration of the Test to reserve to himself a Power to rise in Rebellion when he thought fit as was argued in the former Process they therefore ratified the Process of Forfaulture nemine contradicente and added their Authority to that of the Iustice Court and because 't is wonder'd why he was not prosecuted upon this New Rebellion it is answer'd That by the Laws of all Nations and by the Laws especially of Scotland and England no Man can be try'd for the very same crime for which he stands convicted tho' he may for a crime which deserves a greater Punishment for the Law has exhausted its Revenge by the first Sentence but yet where a new Notorious Aggravation superveens which is so clear that it can admit of no Debate nor needs no Probation it were very unjust that the Law should not here be put in Execution tho' the first Sentence had been thought too severe to deserve it We conclude then this Process with this Reflection That a Government can in no sense be call'd Severe where the person accus'd has Liberty and is entreated to retract his crime where his Children and Creditors get all his Estate and where he himself does not suffer until he made it manifest by his Invasion of his Native Countrey that the design of his explaining the Test in a Paper under his Hand was to reserve to himself a power to Rebell and till he had aggravated highly his former guilt But why do they reproach us with this one Decision who do yet sustain those abominable ones that were executed without the least shadow of Justice against the Marquess of Huntley and Montrose President Spotswood Haddo and Seven hundred Gentlemen more who died by their Justice Court when their Covenant over-rul'd Law and Equity and against Four hundred and Fifty Gentlemen and Commons who died by the Justice-Court of Argyle beside the many thousands who died in the Civil War of which they must be guilty who raised it and who never yet made the least profession of Repentance for it The Parliament 1685 being inform'd of Monmouth and Argyle's Invasion and being convinc'd that Argyle had reserv'd that power in his Explicatory Paper of the Test meerly that he might Invade his Countrey and its Laws and reflecting on the Treasonable Principle of the Covenant of defending the King only in defence of Religion and the late limitations of owning no King except he had taken their Covenant They therefore not by a Recognising Act but in the Narrative only of the Act relating to the Excise offer'd their Lives and Fortunes without reserve which Clause was inserted by the Parliament not to introduce a blind Slavery as some maliciously pretend but meerly to exclude these Rebellious Limitations of Obedience invented by the Covenanters which were inconsistent with former standing Laws and by which the People had been highly debauch'd in the late Civil War for in that very Parliament they enlarged the Peoples Liberties and ratified all Laws in favours of the Protestant Religion and the very same persons in the next Parliament refus'd to take away the Penal Statutes whereas if an absolute Slavery had been design'd all the former Acts establishing our Liberty and Property and all the Concessions granted to us by our Kings for securing our Lives and Fortunes should have been expresly Enumerated and Abrogated and so the words in the Narrative of that Act could be no warrant for the Proclamation disabling the Laws against Toleration as some would have us believe and they who now complain were the only persons who then took the benefit of that stretch of the Prerogative We could wish that our Accusers would be careful that in being too rigid Censurers of us they do not expose all Governments and even the present to reproach for it would seem to some who are now by-standers as they then were that though they cry'd out against us for torturing when it was warranted by our uncontroverted Law yet the expediency of Government or some other reason makes them do it after they had declar'd it a Grievance and had rail'd against it as inconsistent with all humanity Nor do I see that the reserving it only to King and Parliament answers this Objection for the Parliament by their Authority cannot make that fit which is inconsistent with Humane Nature or that convenient which was declar'd to be incapable to produce the true effect for which it was design'd and the making Torture then only a Grievance when inflicted without a Cause as is pretended seems to satisfie as little since every Man can easily pretend that what he does is done upon just Motives The Imprisoning many and keeping them long can hardly be objected to us since the present Government find themselves obliged to do both and the last Parliament in their great Wisdom thought it fit to reject a Bill for Habeas Corpus when it was press'd as suitable to one of the Grievances Nor can we yet discover why the forfeitures of those should be rescinded by the current Parliament who were Sentenc'd for having taken up Arms at Pentland-Hills and Bothwell-Bridge or those who were forfeited for the Proclamations at Sanquhar and elsewhere wherein King Charles was declared to have lost his Right to the Crown for having broke the Covenant that Tripartit and Fundamental Contract betwixt God the King and his People and wherein it is declared a Duty to kill him and all who serv'd him and to throw off the Race of the Stewarts as constant Enemies to God As also how the Forfeiture of the Duke of Monmouth and all who adher'd to him and that of the Earl of Argyle were repealed in Cumulo for if it be lawful for Subjects to rise in Arms upon the single pretence of Conscience no King nor no Government can be secure If a considerable part of the Nation should now rise for Liberty Property and Episcopacy upon the same pretext would the Parliament find this defence good some are also found who reproach the present Government for suffering Ministers to be thrown out by the Rabble without any previous Tryal or reparation afterwards and many other things which afford but too great ground for Satyr and Complaint if I were inclined to either The Necessity of State is that Supereminent
of Law yet lest the Defendant may by ignorance or confusion omit to represent those matters of Fact from which new points of Law may arise therefore Our Law allows always Advocats to the Defendant and forces any whom he does name to accept the Employ Act 91. Parl. II. I. 6. Tho by the Laws of some Nations no Witnesses are allow'd to be produc'd for the Defendant but such as do appear voluntarily yet when Sir George Mackenzie was a Iudge in the Criminal Court which answers to the King's-Bench in England he ordered for the good of the People the Remedy of Exculpation whereby the Defendant representing that he has some Defences a Warrant is giv'n to force the Witnesses whom he names to appear under severe Penalties and such time is granted to him and them as may be sufficient for their appearance and these Witnesses when compearing are examined upon Oath and the Iury is obliged to believe any two of them tho no Witnesses are allowed to Swear against the King in England This Order was thereafter turn'd into an Act of Parliament Act 16.3 Sess. Parl. 2. Ch. 2. Article II. And also to take off all possibility of Packing Iuries in Edinburgh where generally the Juries are chosen 't was ordered by the Iudges at Sir George his earnest Request That the Town of Edinburgh should give up a List of all their Housekeepers who were able to pass upon Iuries and that all these should be named per vices according to the situation of the place where they liv'd Because the Defendant did not know what Witnesses were to be produced against him by the King's Advocate and so could not have Witnesses ready to prove his Objections against them therefore Sir George prevailed with the Parliament that the King's Advocate should be for ever after obliged to give with the Indictment a List of what Witnesses or Members of inquest were to be used by them and an order is given for citing any Witnesses the Defendant pleases with a competent time for bringing them Fifteen days being still the least time allowed by our Law for preparing the Defendant in all such cases When the day of Tryal or Appearance comes the Witnesses who were present at the giving the citation are obliged to depose upon Oath that they truly saw the citation given thereafter the King's Advocate produces his Warrant Nor did ever Sir George Mackenzie prosecute any man until he was commanded by the Council and till he produced his Warrant as still appears from the Records of the Council and Criminal Court to both which he solemnly appeals and then the Indictment is read after which the Advocates for the Defendant dictate to the Clerk his defences to which the King's Advocate dictates his replies the Defendants Advocates again their duplies c. and that to the end the Iudges may the better consider what is said and may stand in awe of posterity After the debate is closed the King's Advocate and all others retire and the Iudges having read fully the Debate they argue the case amongst themselves and thereupon they by their Interlocutory Sentence find such and such points to be relevant that is to say well founded in Law and they sign this Interlocutory Sentence or Iudgment which is imposed as a further tye upon the Iudges for the security of the People nor are Witnesses allowed to be examined upon any thing but what they have found thus to be Legal The Advocates for the King and Defendant being both called in before the Court the Defendant hears the Sentence read and then the forty five Iurors are called and the Defendant's Objections against them are discussed and tho' of old the King's Advocate had the naming of the Iury as being presumed disinteressed yet Sir George Mackenzie prevailed to get an Act of Parliament whereby the Nomination of the Iury was referred to the Iudges fifteen of these forty five only are admitted as a sufficient Iury and the Defendant is allowed to challenge or reject without giving any ground or reason for it any thirty that he pleases of that number and the fifteen who remain make up the Jury and are set by the Judges The Iury being thus constituted in the next place all the Witnesses are called in before the Court one by one and not allowed to hear what one another say and after the Objections against such Witnesses are fully debated in Writ and upon Record the Witnesses are either admitted or rejected as the Judges find ground in Law and Equity If admitted the President of the Court examines only upon what is found legal or relevant in the Indictment And in the next place he is examined upon any Interrogatory that is moved either by the Defendant or any of the Iury for him and then the whole Deposition is dictated by the President of the Court and is fully read in the hearing of the Witness and of the Defendant and his Advocats and if they desire any thing to be corrected it is accordingly done if the Witness agree with them in the correction and in the last place the Deposition is signed by the President and the Witness that gave it All the Depositions being thus taken the Advocats for the King and Defendant speak to the Iury in a full Harangue but because the Publick Interest was still to be preferr'd to private mens therefore our Law allowed the King's Advocat to be the last Speaker in all Criminal Cases till Sir George prevail'd with the Parliament to give the last word to the Defendant in all Cases except that of Treason because ordinarily the greatest impression was supposed to be made by the last pleading The Debate and Examinations thus ended the Iury are enclosed and get in with them the whole Debate interlocutory Sentence and Depositions in writing signed by the Iudges Clerk and Witnesses This instructs them fully how to proceed and after they have chosen a Chancellour or Foreman and a Clerk they read all the Process and debate fully upon it and to the end every Iuror may stand in awe of Posterity it is marked by the Clerk in the Verdict who absolved and who condemned and as no Witness can be examined but in presence of the Party indicted so if any man speak to any of the Iury after they are enclosed the Defendant is for ever Free And tho of old the Clerk of the Court was used to be enclosed with the Jury for their direction yet Sir George Mackenzie procured that because the Clerk had some dependance upon the Crown he might be excluded from going in with them and that they might chuse their own Clerk which they use accordingly to do since that Act. Art 8. of the foresaid Act. 16. By this it appears that no Nation is more nice in securing the Subject or have ever shewed more judgment in Processes or Proceedings of Treason than Scotland has In the next place I must observe That no Nation has ever
extirpation of the Kingdom of Darkness and whatsoever is contrair to the Kingdom of Christ and especially Idolatry and Popery in all the Articles of it as we are bound in our National Covenant and Superstition Will-worship and Prelacy with its Hierarchy as we are bound in our Solemn League and Covenant And that we shall with the same sincerity endeavour God giving us Assistance the overthrow of that Power that hath established that Prelacy and Erastianism over the Church and exercises such a Lustful and Arbitrary Tyranny over the Subjects seeking again to introduce Idolatry and Superstition in these Lands contrair to our Covenants And in a word that we shall endeavour the extirpation of all the works of Darkness and the Relicts of Idolatry and Superstition which are both much enlarged and revived in our times and execute righteous Iudgments impartially according to the Word of God and degree of Wickedness upon the Committers of these things but especially Blasphemy Idolatry Atheism Sorcery Perjury Uncleanness Prophanation of the Lords day Oppression and Malignancy that being thus zealous for God he may delight to dwell among us IV. Seriously considering that the hand of our Kings has been against the Throne of the Lord and that now for a long time the Succession of our Kings and the most part of our Rulers with him hath been against the purity and power of Religion and Godliness and freedom of the Church of God and hath degenerate from the vertue and good Government of their Predecessors into Tyranny and hath of late so manifestly rejected God his Service and Reformation as a Slavery as they themselves call it in their publick Papers especially in these last Letters to the King and Duke of Lauderdale disclaiming their Covenant with God and Blasphemously inacting it to be burnt by the hand of a Hang-man governed contrary to all right Laws divine and humane excercised such Tyranny and Arbitrary Government opprest Men in their Consciences and Civil Rights used free Subjects Christian and reasonable Men with less discretion and justice than their Beasts and so not only frustrate the great end of Government which is that Men may live Godly Holily and Peaceably under them and might be maintained in their Rights and Liberties form injury and wrong but hath also walked contrary to it so that it can no more be called a Government but a lustful Rage excercised with as little right Reason and with more Cruelty than in Beasts and they themselves can be no more called Governours but publick Grassators and publick Iudgements which all Men ought as earnestly to labour to be free of as of Sword Famine or Pestilence raging amongst us and besides hath stopped instead of punishing the Course of Law and Iustice against Idolaters Blasphemers Atheists Murderers Incestuous and Adulterous and other Malefactors and instead of rewarding the Good hath made Butcheries and Murthers on the Lord's People sold them as Slaves Imprisoned For faulted Banished and Fined them upon no other account but for maintaining the Lords Right to rule Consciences against the Usurpations of Men for fulfilling their Vows and repelling unjust Violence which innocent Nature allows to all of all which and more particulars we can give we speak as before God innumerable and sure Instances Neither can it be thought that there is hope of their returning from these Courses having so often shewed their Natures and Enmities against God and all Righteousness and so often declared and renewed their Purposes and Promises of persevering in these Courses And suppose they should dissemble a Repentance of these Evils and profess to return to better Courses being put to Straits or for their own Ends for upon no other account can we reasonably expect it and though it might be thought that there might be Pardon for what is done which we cannot yet see to be without the violation of the Law of God and a great guiltiness on the Land from which guiltiness the Land can never be free but by executing of God's righteous Iudgements upon them for omitting of so greatly deserved and so necessarily requisite a Justice yet they cannot be believed after they have violated all Tyes that Humane Wisdom can devise to bind Men and beside there will be something of Folly found to think to bind a King that pretends to absoluteness And our Fathers or rather our selves at first judged it not warrantable to receive Him without consenting to and swearing of the Covenant And if so the renouncing and disclaming thereof we ought at present to judge to be a just and reasonable ground of rejecting Him upon these Grounds being assured of God's approbation and Mens whose Hearts are not utterly byassed and their Consciences altogether corrupted and knowing assuredly that the upholding of such is to uphold Men to bear down Christ's Kingdom and to uphold Satans and the depriving of Men of right Government and good Governours to the ruining of Religion and undoing of Humane Society We then seeing the innumerable Sins and Snares that are in giving obedience to their Acts on the other hand seeing if we shall acknowledge their Authority and refuse Obedience to their sinful Commands the endless Miseries that will follow and siding with God who we hope will accept and help us to a liberation from their Tyranny against his stated and declared Enemies do reject that King and those associate with him from being our Rulers because standing in the way of our Right free and peaceably serving of God propagating his Kingdom and Reformation and overthrowing Satans Kingdom according to our Covenant And declares them henceforth to be no lawful Rulers as they have declared us to be no lawful Subjects upon a ground far less warrantable as Men unbyassed may see and that after this we neither owe nor shall yield any willing Obedience to them but shall rather suffer the outmost of their Cruelties and Injustice until God shall plead our Cause and that upon these Accounts because they have altered and destroyed the Lord's established Religion overturned the fundamental and establish'd Laws of the Kingdom taken altogether away Christ's Church and Government and changed the Civil Government of this Land which was by King and free Parliament into Tyranny where none are associate to be partakers of the Government but only those who will be found by Justice to be Guilty of Criminals and all others excluded even those who by the Laws of the Land by Birth had a right to and a share in that Government and that only because not of the same Guiltiness and mischievous Purposes with themselves And also all free elections of Commissioners for Parliaments and Officers for Government are made void by their making those the Qualifications of admission to these Places which by the Word of God and the Laws of this Land were the cause of their exclusion before so that none can look upon us or judge us bound in Allegeance to them unless they say also we are bound in