the natural consequences of their Covenant and Principles by which we leave the World to Iudge whether Sir George Mackenzie has not treated them with all modesty and tenderness and whether any Form of Government can possibly subsist where such wicked and pernicious Fooleries are propagated THE Solemn League and Covenant WEE Noblemen Barons Knights Gentlemen Citizens Burgesses Ministers of the Gospel and Commons of all sorts in the Kingdoms of Scotland England and Ireland by the Providence of GOD living under one King and being of one reformed Religion Having before our eyes the Glory of GOD and the Advancement of the Kingdom of our Lord and Saviour Iesus Christ the Honour and Happiness of the Kings Majesty and his Posterity and the true Publick Liberty Safety and Peace of the Kingdoms wherein every ones private condition is included And calling to mind the treacherous and bloody Plots Conspiracies Attempts and Practices of the Enemies of GOD against the True Religion and Professors thereof in all places especially in these three Kingdoms ever since the Reformation of Religion and how much their Rage Power and Presumption are of late and at this time increased and exercised whereof the deplorable estate of the Church and Kingdom of Ireland the distressed estate of the Church and Kingdom of England and the dangerous estate of the Church and Kingdom of Scotland are present and publick Testimonies We have now at last after other means of Supplication Remonstance Protestations and Sufferings for the preservation of our selves and our Religion from utter ruine and destruction according to the commendable practice of these Kingdoms in former times and the Example of GOD's People in other Nations after mature deliberation resolved and determined to enter into a mutual and solemn League and Covenant Wherein we all subscribe and each one of us for himself with our hands lifted up to the most high GOD do Swear 1. THat we shall sincerely really and constantly through the Grace of GOD endeavour in our several places and Callings the Preservation of the Reformed-Religion in the Church of Scotland in Doctrine Worship Discipline and Government against our Common Enemies The Reformation of Religion in the Kingdoms of England and Ireland in Doctrine Worship Discipline and Government according to the Word of GOD and the Example of the best Reformed Churches And shall Endeavour to bring the Churches of GOD in the three Kingdoms to the nearest conjunction and Vniformity in Religion Confession of Faith Form of Church Government Directory for Worship and Catechising That We and our Posterity after us may as Brethren live in Faith and Love and the Lord may delight to dwell in the midst of us 2. That we shall in like manner without respect of persons endeavour the Extirpation of Popery Prelacy that is Church Government by Archbishops Bishops their Chancellours and Commissaries Deans Deans and Chapters Arch-Deacons and all other Ecclesiastical Officers depending on that Hierarchy Superstition Heresie Schism Prophaneness and whatsoever shall be found to be contrary to sound Doctrine and the Power of Godliness Lest we partake in other mens sins and thereby be in danger to receive of their plagues And that the Lord may be One and his Name One in the three Kingdoms 3. We shall with the same sincerity reality and constancy in our several Vocations endeavour with our Estates and Lives mutually to preserve the Rights and Priviledges of the Parliaments and the Liberties of the Kingdoms And to preserve and defend the Kings Majesties Person and Authority in the preservation and defence of the True Religion and Liberties of the Kingdoms That the World may bear witness with our Consciences of our Loyalty and that we have no thoughts or intentions to diminish His Majesties Iust Power and Greatness 4. We shall also with all faithfulness endeavour the Discovery of all such as have been or shall be Incendiaries Malignants or evil Instruments by hindering the Reformation of Religion dividing the King from his People or one of the Kingdoms from another or making any Faction or Parties amongst the People contrary to this League and Covenant That they may be brought to publick Tryal and receive condign punishment as the degree of their Offences shall require or deserve or the supream Iudicatories of both Kingdoms respectively or others having power from them for that effect shall judge convenient 5. And whereas the happiness of a Blessed Peace between these Kingdoms denyed in former times to our Progenitors is by the good Providence of GOD granted unto us and hath been lately concluded and setled by both Parliaments We shall each one of us according to our place and Interest endeavour that they may remain conjoined in a firm Peace and Union to all Posterity And that Iustice may be done upon the wilful Opposers thereof in manner expressed in the precedent Article 6. We shall also according to our places and callings in this common Cause of Religion Liberty and Peace of the Kingdoms assist and defend all those that enter into this League and Covenant in the maintaining and pursuing thereof and shall not suffer our selves directly or indirectly by whatsoever Combination Perswasion or Terrour to be divided and withdrawn from this Blessed Vnion and Conjunction whether to make defection to the contrary part or to give our selves to a detestable indifferency or neutrality in this Cause which so much concerneth the Glory of GOD the Good of the Kingdoms and Honour of the King But shall all the days of our lives zealously and constantly continue therein against all opposition and promote the same according to our power against all Lets and Impediments whatsoever and what we are not able our selves to suppress or overcome we shall reveal and make known that it may be timely prevented or removed All which we shall do as in the sight of GOD. And because these Kingdoms are guilty of many sins and provocations against GOD and his Son Jesus Christ as is too manifest by our present distresses and dangers the fruits thereof we profess and declare before GOD and the World our unfeigned desire to be humbled for our own sins and for the sins of these Kingdoms especially that we have not as we ought valued the inestimable benefit of the Gospel that we have not laboured for the Purity and Power thereof and that we have not endeavoured to receive Christ in our Hearts nor to walk worthy of him in our lives which are the causes of other sins and transgressions so much abounding amongst us and our true and unfeigned purpose desire and endeavour for our selves and all others under our Power and Charge both in publick and in private in all Duties we owe to GOD and Man to amend our lives and each one to go before another in the example of a real Reformation That the Lord may turn away his wrath and heavy indignation and Establish these Churches and Kingdoms in Truth and Peace And this Covenant we make in the
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
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
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