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
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
But to elude these Penalties for House-Conventicles some Preachers amongst whom were some of those who had been formerly banished gathered the People together in the Fields they bringing Arms with them to secure their Ministers came at last to have such an Opinion of their own strength that they formed themselves into an Army and were defeated at Pentland Hills Novemb. Anno 1666. Yet within a short time of that the State Indulged them so far as to allow them their own Ministers settling them in Churches and allowing them the enjoyment of the Benefices in many places This did not satisfie these People because the Ministers so Indulged acknowledged the King and Council's Authority and they with some of their violent Preachers railed as much against these Indulged Ministers as against the Bishops and regular Clergy and call'd them Council Curates and separated from them The State considering that by the Laws of all Nations rising in Arms is to be accounted Rebellion and that a Preacher's Presence could legitimate the Action no more than a Priest could Transubstantiate the Elements they declared by several Acts Field-Meetings to be the Rendevouzes of Rebellion Notwithstanding all which these Dissenters proceeded as from House to Field-Meetings so from Field-Conventicles to publish Proclamations Declaring that the Covenant was the Original Contract betwixt God the King and the People and therefore King Charles the Second having broken it forfaulted his Crown and being to be considered only as a private Subject and Enemy to God they had declared a just War against him and that it was lawful to kill him and all who served him following as was pretended the Noble Examples of Phineas and Eliud and in consequence of this Doctrin they murthered the Arch-Bishop of St. Andrews and several others to defend these Murtherers an Army was gathered by them which was beat a Bothuel-Bridge Anno 1679. But yet the King to reclaim them granted both an Indemnity and Indulgence notwithstanding of which a New Plot was entred into and it was Contrived in a Meeting of the Scots at London that 20000 Men should be raised in Scotland and that the Garrisons of Berwick and Carlile and all the Officers of State should be seized which was likewise seconded by Monmouth and Argyle's Rebellion Anno 1685. Whereupon the Parliament finding that the Preaching up of Rebellion in private Conventicles had occasion'd all this danger to King and People and that nothing could be secure whilst every thing might be preacht they Enacted That the Ministers who preacht at Conventicles should be Capitally Punished but by Vertue of this Act no Man was ever Punished much less Executed This being the true Progress and these the Occasions of making those Acts it is admired why the Government is taxed with so much Cruelty and the Acts themselves reproached as Diabolical For First These against House-Conventicles are the same with the Laws in England and less severe than those made against Dissenters in Queen Elizabeths time or than those now standing against the Calvinists in Sweden or those made and now executed by the Presbyterians and Independents in New-England but much more gentle than those our Presbyterians made when they Govern'd 2. Whatever might be said against such Acts in Countries where Dissenters never entred into a War yet in this Isle where they upon the same Principles overturned the Government and Laws and were upon every occasion again attempting it so small a Caution cannot be accounted severe 3. This Caution was much more just in Scotland than even in England because the Dissenters in Scotland were more bigotted to the Covenant which is a constant Fond for Rebellion 4. The Posteriour Acts made against Field-Conventicles were the necessary product of new accessional degrees of Rebellion and were not Punishments design'd against Opinions in Religion but meerly against Treasonable Combinations which exceeded what was attempted in England or elsewhere and the Governours for the time can truly and boldly say That no Man in Scotland ever suffer'd for his Religion But if any will pretend that Religion obliges him to rise in Arms or to Murder this Principle ought neither to be sustain'd as a Defence nor the obviating of it to be made a Crime and as the Covenanters laughed at such a defence when propos'd for them who assisted King Charles I. meerly for Conscience sake so they cannot deny but they zealously prest Sir Iohn Dalrymple then Advocate to hang Mr. Renwick a Field-Preacher for Field-Preaching where some of his Hearers were Arm'd because he was like to divide their Church after they got an Indulgence from King Iames against the accepting whereof Renwick and his Party exclaim'd highly and that so much the more plausibly for that many of them who now accepted an Indulgence from a King professedly Popish had rejected and preacht against those who accepted of one when offer'd by a King of the Protestant Profession I must also ask them if any should now rise in Arms in defence of Episcopacy and alledge Conscience for so doing would they sustain that as a just defence 5. When ever any Man offer'd to keep the Church former Fines were generally remitted if timeous Application was made and more Indulgencies and Indemnities were granted by this King than by any that ever reign'd and generally no Man was executed in his Reign who would say God Bless the King or acknowledge his Authority an unusual Clemency never shewn in any other Nation and such as was not practised by those who now cry out against the Severity of that Government The Reader will be astonished when we inform him that the way of Worship in our Church differed nothing from what the Presbyterians themselves practised except only that we used the Doxologie the Lord's Prayer and in Baptism the Creed all which they rejected We had no Ceremonies Surplice Altars Cross in Baptisms nor the meanest of those things which would be allowed in England by the Dissenters in way of Accommodation That the most Able and Pious of their Ministers did hear the Episcopal Clergy Preach many of them Communicated in the Churches and almost all the People Communicated also so that it cannot be said that they were Persecuted and forced to joyn with an Vnsound much less Heretical Church as the French Protestants are From all which it follows clearly that the Complainers were the Aggressors that the Government proceeded by slow steps to Punish even those who had forced it into a Resentment and that all pains were taken to Reclaim rather than Punish Any Reasonable and Unprejudiced Man must allow that the State had reason to be jealous that the same Men who had Invaded and overturned the Government under King CHALES I. retaining still the same Principles as Sacred and bursting forth into the same Excesses under King CHARLES II. were still to be kept in awe and within the Barriers of Law and that by their own Principle of Salus Populi better some few of the Society
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
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
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
all that are unchast in thoughts words and behaviour and all that makes no Conscience of their way and whosoever loveth and maketh a lye shall tremble that day when they shall enter into Eternity when it shall be said as it was to Dives Thou in thy Lifetime hadst thy good things and Lazarus his bad things For except a Man be born again he can in no wise enter into the Kingdom of Heaven We take up the Book of the Holy Scripture at the Lords command and for a Testimony of our Dissatisfaction at the abounding Corruptions both of Translators and the Press and likewise for a Testimony of our desires and intentions for a new Translation and Impression free of the foresaid and other abuses we to our power reform our own Books and sayes that the word of God needs no humane Art we hold that the Word of God is laid the Foundation of this new Building and shortly it shall become the head Corner stone of the Building over both Kirk and Stater Kirk-Men and States-Men so that Scripture towards the end of the Rev. of Iohn shall be fulfilled And I saw Heaven opened and behold a white Horse and he that sat upon him was called Faithful and True and in Righteousness he doth Iudge and make War his Eyes were as a flame of Fire and on his Head were many Crowns and he had a new Name written that no Man knew but he himself and he was Cloathed with a Vesture dipt in Blood and his Name is called the word of God And first to shew that we take the Word of God in every point to be our Rule the sum and end of our so much reproached and mocked at Exercise Fasting and Prayer will be found in the Book of Psalms Be thou exalted O God above the Heavens and let thy glory be above all the Earth It is written in the Acts of the Apostles It seemed good to the Holy Ghost and to us but they usurping Supremacy says by the Authority of the General Assembly allows these Psalms to be sung in Congregations c. which we renounce And more we think the Psalm Book in Meeter and no other thing ought to be within the broads of the Bible but the simple Scriptures of Truth the Psalms may be had in a Book by themselves We are so reproached and calumniate that we are forced to make our defence and shew that we have mourned fasted and prayed many a day and many a night this last Winter many times in the open Fields in Frost and Snow while our Cloaths were frozen upon us and our Feet frozen in our Shooes as the Town of cursed Borronstonness can witness and all this to find out the causes of our Lords tarrying when those who are now calling us Devils were turning themselves upon their Ivory beds like a door upon the Hinges eating the fat and drinking the sweet at their own ease And when we were driven thence by Persecution we took our selves to the Fields holding still by our duty where many Women did offer themselves to the Work with whom our spirits was many a time burdened whom we could not put away as our blessed Lord dealt with Iudas whom he knew would betray him without manifest causes We stayed not with them but on solemn days such as Sabbaths and appointed times for publick meeting but when they took their rest betwixt hands we continnued still in Fields nights and days fasting and praying for two or three days together several times and it was always their fear we should propose some question to try them for Separation and that night before we was taken we warned them that the Soldiers would come and told them to use their freedom we saw them also a mile off an hour before they came and none of them would go away and after we were brought in hither after some several days Fasting and Prayer we being warned by the Holy Ghost followed Esther's advice and continued from eight a Clock of the morning the 24 day of the 5 Month till the 27 at four afternoon Fasting and Praying we sent them word likewise to Fast and Pray and when we sent them the answer of our Prayers in the writ they called us Devils Thence we fasted till the 28 day at night and thence till the 30 at night waiting still to see if they would recover but they waxed still worse and we were forced to write this to vindicate our carriage towards them Walter Ker. Iohn Gibb David Iamison Iohn Young This is Exactly Compared and Collationed with the Principal Copy by me WIL. PATERSON Cl. Sti. Concilii FINIS A Catalogue of some Books Printed for Io. Hindmarsh at the Golden-Ball over against the Royal-Exchange in Cornhill THE Antiquity of the Royal Line of Scotland farther Cleared and Defended against the Exceptions lately offer'd by Dr. Stillingfleet in his Vindication of the Bishop of St. Asaph By Sir George Mackenzie His Majesty's Advocate for the Kingdom of Scotland The Moral History of Frugality with its opposite Vices Covetousness Niggardliness Prodigality and Luxury Written by the Honourable Sir George Mackenzie late Lord Advocate of Scotland A Memorial for His Highness the Prince of Orange in Relation to the Affairs of Scotland Together with the Address of the Presbyterian-Party in that Kingdom to His Highness And some Observations on that Address By two Persons of Quality An Account of the Present Persecution of the Church in Scotland in several Letters The Case of the Present Afflicted Clergy in Scotland truly represented To which is added for Probation the attestation of many unexceptionable Witnesses to every Particular and all the Publick Acts and Proclamations of the Convention and Parliament relating to the Clergy By a Lover of the Church and his Country An Historical Relation of the late Presbyterian General Assembly held at Edinburgh from October 16. to November 13. In the Year 1690. In a Letter from a Person in Edinburgh to his Friend in London Vid. Cargil and Sanchars Covenant at the end * That is this noise of Prisoners yet preserved alive So the Preacher applied his Doctrin The truly learned Advocate for the King †Illud tamen generaliter observandum quod Iurisdictio nunquam privative sed cumulative delegaâ—i potest non est quasi transitio juris de unâ— persona in aliam sed tantum mandata jurisdictio quod non obstante Delegatione adhuc remanet in delegante Considering the violent and cruel temper of their Enemies * Compare this with the Sanchar Declaration and Cargil's Covenant at the end of this Paper * That is the same Punishment which the Law provides against such a Criminal Art eod II. Art 3. ejusdem Art 10. Act 92. Ses. II. Iac. 6. * Vid. Cargils Covenant and Sanchar Declaration