A.D. 1681.
Parliament—Act for securing the Protestant religion—asserting the divine
right and lineal succession of their kings—for securing the peace of
the country—Lord Bargeny’s case—-THE TEST—debate upon
it—Belhaven—Argyle—objections to its imposition—Argyle takes it with
an explanation—his trial—escapes from the Castle—forfeited—Fraser of
Brea—fined—banished.
At nine o’clock of the forenoon of July 28, the peers in their robes,
and the commissioners of shires in their foot-mantles, assembled at
Holyrood-house on horseback, whence they accompanied his Royal Highness
James Duke of Albany and York to the Parliament House. There being
neither Chancellor nor Treasurer, the Marquis of Atholl was appointed
president of the parliament. Paterson, bishop of Edinburgh, opened it by
a prayer.[139] The Duchess of York and several other ladies were
present, which was uncommon in those days, and considered indecorous.
The Duke of York, who, as a papist would, but for a party in the English
House of Lords, have been excluded from the succession, was sent to
Scotland as commissioner to secure that country, and lay the foundation
of another civil war, if things went adverse to his interest in England.
Nor was any opposition made by this mean-spirited assemblage to
receiving a papist as their king’s representative: previously to their
meeting, it had been privately agitated, but the Duke of Hamilton
refused to have any thing to do with the business, unless a majority
could be previously secured.
Footnote 139:
The first thing which came before the parliament was of course the
settling of controverted elections, on which occasion Bishop Paterson
gave proof of his fitness for the office he filled. “The Bishop of
Edinburgh was heard to say, in the debateable election of East
Lothian, that, for serving the king, the committee might very lawfully
prefer one who was inferior in votes, and they might pass over four or
five votes to hold out a Shaftesbury, which,” adds Lord Fountainhall,
“was spoke very like one who minded his oath, his parliament oath, de
fideli, to judge according to law!”—Decis, vol. i. p. 140.
Both the king’s letter and his speech are pregnant examples of that
villanous hypocrisy which distinguished the royal brothers. The king
told them—“We have ever considered our own and the interests of our
subjects to be inseparable;” and then he explained how “experience
having sufficiently evinced, that all invasions upon, or diminutions of,
the rights and prerogatives of our crown, prove fatal and destructive to
the security and property of our people—which can only thereby be
protected!” and “it is one of our greatest satisfactions that we have
been always careful of that our ancient kingdom, with a tenderness
suitable to our great interest in it,” “for promoting which and securing
the protestant religion, we have called this parliament, and impressed
upon them the necessity of adopting effectual and adequate remedies for
curing these violent distempers, schisms, and separation in the church,
and rebellion in the state.” The Duke of York confirmed the declarations
of the gracious letter. He had it in command from his majesty to assure
them that he would inviolably maintain and protect the protestant
religion as now established by law, and seriously recommended them to
fall upon effectual courses for suppressing these seditious and
rebellious conventicles, from whence proceeded all disorder and
confusion, and those horrid and extravagant doctrines which are a
scandal to Christianity, and tend to the subversion of all public and
private interests; and he concluded by telling them, “as the inclination
I had to serve and promote the interest of this kingdom hath been the
chief inducement to his majesty to give me this opportunity to convince
you of it; so you may be sure I shall do what becomes me to satisfy you
of the truth of it: and I hope you will have that consideration and
kindness as to enable me to perform his service.”
The parliament made a reply, the baseness of which I do not wonder at,
but I do admire the impudence, when I recollect that it was first to be
presented to a papist commissioner, and by him transmitted to a
half-popish king—if he was any thing. “It is a great satisfaction to us
to find your majesty so concerned for the protestant religion, not only
in your gracious letter to us, but in the whole conduct of your royal
government; and we shall with all Christian care and duty endeavour to
confirm it, so as it may become a solid and pious support to your royal
family and monarchy, and a sure fence in this disturbed and divided
church against all usurpations and disorders of popery and fanaticism;”
and they added, what would not be less gratifying, “we shall not fail,
by positive laws, to declare our humble and hearty acknowledgments of
the just rights and prerogatives of your imperial crown, in its just,
native, and lineal course of descent; and to secure the just rights and
liberties of your subjects, so as may justly demonstrate our unalterable
resolutions never to depart from our duty to your royal family and your
lawful heirs and successors, to whom we are tied by so many sacred
obligations.”
Their first act was one ratifying and approving all former laws, acts,
and statutes, made by our sovereign lord’s royal grandfather and father,
of blessed memory, for settling and securing the liberty and freedom of
the kirk of God, and the protestant religion presently professed, and
all acts against popery! The very next was one asserting that the kings
of the realm deriving their royal power from God Almighty alone, their
lineal succession, according to the known proximity in blood, could
neither be suspended nor diverted by any act or statute whatsoever; and
that no difference in religious profession, nor law, nor act of
parliament, made or to be made, can alter or divert the right of
succession and lineal descent of the crown to the nearest and lawful
heirs![140]
Footnote 140:
On this Laing well remarks—“When we peruse the act, and consider how
soon the crown was afterwards forfeited; when we contemplate how
frequently and happily the lineal succession has been since
inverted—we must smile with contempt at the extreme fragility of
political laws, and at the anxious precaution with which the most
violent of them are framed, only to be disregarded and ultimately
broken.”—Hist. vol. iv. p. 119.
Then followed an act for securing the peace of the country, by doubling
the fines and increasing the penalties against all who frequented
field-conventicles, or had any intercourse with those who did. This
presents us with a feature recognizable in the whole conduct of the
ruling party, from the Restoration to the Revolution, which has not been
sufficiently held up to contempt, and that is the low avarice, the base
money-getting tricks which formed the soul, and directed the agency, of
the gallant and chivalrous supporters of the merry monarch, and of his
successor, the gloomy monk of La Trappe. There stands not out among them
one redeeming character—all were the vilest of money-scrapers, who would
have raked the lowest kennels to gather a supply for their prostitutes,
and who, when that failed, only did not take to the highway, because
they found legal villany an easier and less hazardous way of plundering.
An incident which occurred at this time, shows the tenure by which the
wicked hold their power.
Lord Bargeny, a relation of the Duke of Hamilton’s, who had been
imprisoned on a charge of being at Bothwell, was liberated by especial
order of the king, as no proof was produced against him. He offered, in
open parliament, to produce evidence that Hatton, (Lauderdale’s
brother,) the Earl of Moray, and Sir John Dalrymple, had suborned
witnesses to swear away his life, in order to obtain his estates among
them; but the Duke of York, who wished to have the parties in his own
hands, interposed and prevented all inquiry into the foul
transaction:—such was his love of justice—and such was the baseness of
the parliament, that they quietly acquiesced in the Commissioner’s
arbitrary and unjustifiable interference.
But the act which above all others holds up the memory of this servile
set to everlasting shame, is the test—the plain history of which is
worth a thousand arguments to prove the folly as well as the iniquity of
all attempts to secure religion by civil penalties, or to enact
religious tests for political purposes. In order to induce members to
pass the act of succession, they had been promised that every requisite
measure should be adopted for securing the protestant religion.
Accordingly, an act anent religion and the test was brought in, August
31, by which the following oath was ordered to be taken by all persons
in offices and places of public trust, members of parliament, and all
electors of members of parliament, and all ministers or preachers of the
gospel, teachers in the universities, chaplains in families, pedagogues
to children, and all officers and soldiers, betwixt and the 1st of
January next:—“I, ——, solemnly swear, in presence of the eternal God,
whom I invocate as judge of my sincere intention in this my oath, That I
own and sincerely profess the true protestant religion contained in the
Confession of Faith, recorded in the first parliament of King James VI.,
and that I believe the same to be founded on and agreeable to the
written word of God; and I promise and swear that I shall adhere
thereunto during all the days of my life-time, and shall endeavour to
educate my children therein, and shall never consent to any change or
alteration contrary thereunto, and that I disown and renounce all such
principles, doctrines, or practices, whether popish or fanatical, which
is contrary unto, and inconsistent with, the said protestant religion
and Confession of Faith: and for testification of my obedience to my
most gracious sovereign Charles II., I do affirm and swear by this my
solemn oath, that the king’s majesty is the only supreme governor of
this realm, over all persons, and in all causes, as well ecclesiastical
as civil; and that no foreign prince, person, pope, prelate, state, or
potentate, hath, or ought to have, any jurisdiction, power, superiority,
pre-eminency, or authority, ecclesiastical or civil, within this realm;
and therefore I do utterly renounce and forsake all foreign
jurisdictions, powers, superiorities, and authorities; and do promise
that from henceforth I shall bear faith, and true faith, and true
allegiance to the king’s majesty, his heirs and lawful successors; and
to my power shall assist and defend all rights, jurisdictions,
prerogatives, privileges, pre-eminences, and authorities belonging to
the king’s majesty, his heirs and lawful successors: and I further
affirm and swear by this my solemn oath, that I judge it unlawful for
subjects upon pretence of reformation, or any pretence whatsomever to
enter into covenants or leagues, or to convocate, convene, or assemble,
in any councils, conventicles, or assemblies, to treat, consult, or
determine in any matter of state, civil or ecclesiastic, without his
majesty’s special command, or express license, had thereunto, or to take
up arms against the king or those commissionate by him; and that I shall
never so rise in arms or enter into such covenants or assemblies; and
that there lies no obligation upon me from the National Covenant or the
Solemn League and Covenants (so commonly called), or any other manner of
way whatsomever, to endeavour any change or alteration in the
government, either in church or state, as it is now established by the
laws of this kingdom: and I promise and swear that I shall with my
utmost power, defend, assist, and maintain his majesty’s jurisdiction
foresaid against all deadly; and I shall never decline his majesty’s
power and jurisdiction, as I shall answer to God. And, finally, I affirm
and swear that this my solemn oath is given in the plain, genuine sense
and meaning of the words, without any equivocation, mental reservation,
or any manner of evasion whatsomever, and that I shall not accept or use
any dispensation from any creature whatsomever. So help me God.”
This sacred TEST, which I have given at length, because of its
characteristic singularity, even in that age of oaths—carries on its
front such palpable self-contradiction, that it appears to have been
intentionally framed, as the justiciary categories of that day
confessedly were, to create crime. The Confession of Faith here sworn
to, was that drawn up by John Knox, and asserts Christ to be the _sole_
“head of the church, in which [whose] honours and offices, if men or
angels presume to intrude themselves, we utterly detest and abhor them.”
In the test, the king is acknowledged as “the only supreme in all
causes, ecclesiastical as well as civil.” In the Confession, there is
enumerated in the list of good works, “the duty of repressing tyranny
and defending the oppressed.” In the test, it is declared “unlawful,
upon any pretence, to take up arms against the king or any commissionate
by him.”
In opening the debate, Lord Belhaven remarked, that “he saw a very good
act for securing our religion from one another among ourselves, but he
did not see an act brought to secure our religion against a popish or
fanatical successor to the crown.” He was instantly sent to the Castle,
and the Lord Advocate declared there was matter for an accusation of
treason against him; nor was he released until some days after, upon
making an ample apology. Argyle thought it unnecessary, as there were
too many oaths already; and he strenuously opposed the concluding
clause, excepting the king’s lawful sons and brothers. “It is our
happiness,” he said, “that the king and people are of one religion by
law; and he hoped the parliament would do nothing to loosen what was
fast, or open a door for the royal family being of a different religion
from the nation, and therefore he wished, if any exception were made, it
might be made particularly for his Royal Highness.” The Commissioner
hastily rising, said, he would allow of no exemption for himself.
“Then,” replied Argyle, “if this exception pass, it will do more
prejudice to the protestant religion than all the rest of the acts will
do good.” It did pass, after a day’s debate, by a majority of
seven.[141] Having sat seven weeks, the parliament adjourned without
doing much credit to the Commissioner’s character, “on which some wise
men observed, ‘the Duke of York might have courage and obstinacy enough,
like his father; but had neither great conduct nor a deep reach in
affairs, and was but a silly man.’”[142]
Footnote 141:
The majorities seem to have consisted chiefly of “the royal burrows,
who,” says Fountainhall, “were by the court gulled with the hopes of
getting their privileges restored against burghs of regalities and
baronies (which were taken away by the act of parliament 1672); and in
hopes of it, with Issachar, they couched under the burden, and yielded
to every demand of the Duke of York; but when they brought in their
bill to the Articles, they were so far from getting redress, or the
regalities and baronies declared liable to bear a part of the burden
with them, that the Articles were like to take away more from them; so
the burrows were glad to put up their pipes, and hold them as they
were, beside the skaith they had got, by limiting them to elect none
but one of their own town.” Decis. vol. i. p. 155.
Footnote 142:
Fountainhall’s Decis. vol. i. p. 156.
When the test came to be imposed, Scotland presented the appalling scene
of an almost universal compliance among her men in office; yet even
among them there were a few names who defiled not their garments. John
Hope of Hopeton, who had the honour of being deprived of the Sheriffdom
of Linlithgowshire—the excellent Duchess of Rothes, who though strongly
urged, decidedly refused—besides several others. Queensberry took it
with an explanation, “that he did not understand himself to be against
any alterations in case it should seem good to his majesty to make them
in church or state.” The Duke of Hamilton also had his scruples, but was
willing the council should name deputies in any jurisdictions belonging
to him, which they did. The Marquis of Huntly positively refused to take
it; but being a papist, he was passed over. The opposition, however,
made by the synod and Bishop of Aberdeen, the synod of Perth and Bishop
of Dunkeld, and a number of the Episcopalian clergymen, who for the
first time appeared in opposition to the court, induced Paterson, bishop
of Edinburgh, to prepare an explanation, which was approved of by the
council, purporting “that by the test we do not swear to any proposition
or clause in the said Confession of Faith, but only to the true
protestant religion, founded on the word of God, contained in that
Confession, as it is opposed to popery and fanaticism; that no
encroachment is intended upon the intrinsic spiritual power of the
church, as it was exercised by the apostles in the three first
centuries; nor any prejudice to the episcopal government of this
national church.” The precise and unalterable obligation at the close,
however, was so decisive, that many who would have scrupled little at
common obligations, were startled at this; and, to the honour of the
conformist clergy, not less than _eighty_ rather surrendered their
livings than their conscience; and “these were noted to be the best
preachers, and the most zealous enemies to popery, that belonged to that
church.”
The Presbyterians decidedly refused it. Nor could they act otherwise,
without deserting and betraying their religion. Argyle, who saw all
this, unfortunately did not act with that decision which is often, if
not always, the safest, though frequently not the most pleasant or easy
mode of procedure, and at once resign his employments. He endeavoured to
evade taking it, by offering an explanation, as had been done by the
synods and conforming clergy; and his proposal was accepted graciously
by the Duke of York, who at the same time told him the oath was such as
no honest man could swear. His explanation was:—“I have considered the
test, and am desirous to give obedience as far as I can. I am confident
the parliament never intended to impose contradictory oaths, therefore I
think no man can explain it but for himself. Accordingly, I take it in
as far as it is consistent with itself and the protestant religion; and
I do declare I mean not to bind up myself in my station, and in a lawful
way to wish and endeavour any alteration I think to the advantage of the
church or state.” No remark was made at the time, and the Earl took his
place as a privy councillor; but next day, when he waited upon the Duke,
he was told his explanation was not satisfactory. “I thought,” said his
Royal Highness, “it was to have been a short one like Queensberry’s.
Well! it passed with you, but it shall pass so with no other.”
The unsuspecting Earl understood this as an harmonious finale to the
matter; but he knew not with whom he had to deal. On the same day he was
called before the council as a commissioner of the treasury, and again
required to take the test. He offered to do so in the same manner as he
had done before, but was sternly refused. “You and some others,” said
the Duke of York, “have designed to bring trouble upon a handful of poor
catholics, who would live peaceably, however they are used! but it shall
light upon others,” and walked off, after desiring the Earl not to leave
town till he saw him again. Next day he was ordered by the council to
enter himself prisoner in Edinburgh Castle before twelve o’clock, and
the Lord Advocate was instructed to pursue him for treason. They also
sent an account of their proceedings to the king for his approbation,
which they received in course, only desiring that no sentence should be
pronounced until submitted to him. His trial, which lasted two days
(12th and 13th December), immediately commenced; and a more nefarious
one does not disgrace the justiciary records.
In common, there is some appearance of crime in the charges brought by a
public prosecutor, however distorted by legal subtlety; but not the
shadow of a fault could be made to appear against this nobleman, in so
far as his loyalty was concerned. Here, if in any thing, his failings
leaned to the royal side; and when it is considered what his family had
suffered for the royal cause, and by the royal personages, both “the
blessed martyr” and his profligate son, it is wonderful that any of the
house of Campbell could ever have been found in the ranks that supported
the Stuart race.
His indictment was founded, among other acts, upon that of James VI. 205
act, parliament 14, by which all leasing-makers and tellers of them[143]
are punishable with tinsel of life and goods; and 107, James I.
parliament 7, which ordains that no man interpret the king’s statutes
otherwise than the statute bears, and to the intent and effect that they
were made for, and as the makers of them understood; and whoso does in
the contrary, to be punished at the king’s will; and the 10th act,
parliament 10, James VI., by which it is statuted, that none of his
majesty’s subjects presume to take upon him publicly to declare, or
privately to speak or write, any purpose of slander against his
majesty’s person, laws, or acts of parliament, under pain of death. And
his explanation of what all allowed to be a contradictory act of
parliament, was, from the most unnatural distortion and forced
construction of the words by that base unprincipled slave of the court,
Sir George Mackenzie, tortured into treason:—
Footnote 143:
_i. e._ Liars or tellers of lies. What would have become of the royal
brothers had they been tried upon this statute?
“You the said Archibald Earl of Argyle declared that you had considered
the said TEST, and was desirous to give obedience as far as you could,
whereby you clearly insinuated that you was not able to give full
obedience. In the second article, you declare that you were confident
the parliament never intended to impose contradictory oaths, thereby to
abuse the people with a belief that the parliament had been so impious
as really and actually to have imposed contradictory oaths; and so
ridiculous as to have made an act of parliament (which should be the
most deliberate of all human actions) quite contrary to their own
intentions; and that every man must explain it for himself, and take it
in his own sense, which is a settling of the legislative power in
private subjects: that you take the test in so far only as it is
consistent with itself and the protestant religion, by which you
maliciously intimate to the people that the said oath is inconsistent
with itself and the protestant religion, which is not only a downright
depraving of the said act of parliament, but likewise a misconstruing of
his majesty’s and the parliament’s proceedings, misrepresenting them to
the people in the highest degree, and in the tenderest points implying
that the king and parliament have done things inconsistent with the
protestant religion, for securing of which that test was particularly
intended. In the fourth article, you expressly declare that you mean not
by taking the said test to bind up yourself from wishing and
endeavouring any alteration in a lawful way, that you shall think fit
‘for the advancing of church and state,’ by which you declare yourself,
and by your example invite others to think themselves, loosed from that
obligation, and think it is free for them to make any alteration in
either as they shall think fit; concluding your whole paper with these
words, ‘and this I understand as a part of my oath,’ which is a
treasonable invasion upon the royal legislative power, as if it were
lawful for you to make to yourself an act of parliament, since he who
can make any part of an act may make the whole.”
The Earl’s speech, after the indictment was read, was manly and noble.
It contained simply a general sketch of what he had done for the royal
ingrates, and the consequent improbability that he who had evinced such
unshaken loyalty in the worst of times, should now be guilty of
gratuitous treason.
Sir George Lockhart and Sir John Dalrymple followed in plain luminous
speeches, such as it is impossible to conceive how minds of common
construction could withstand the force of the reasoning, and the effect
of the downright statement of facts, which give to them, in perusal, a
power beyond what any artificial eloquence could bestow; yet such was
the deadening effect of a wretchedly supposed self-interest, that the
bench divided equally—two, Newton and Forret, voting for, and two,
Collington and Harcarse, against, the “relevancy of the libel;” and they
remained until midnight discussing the subject, nor were able to come to
a decision. Queensberry, who presided as Justice-General, having himself
received the test with an explanation, declined to vote, as, in
condemning Argyle, he must have condemned himself; yet to acquit him
would have been to forfeit the favour of the court, and he preferred
having his name registered with infamy, to acting the part of an honest
man. In this dilemma, Nairn, an old superannuated judge, who had fallen
asleep during the trial, and had been under the necessity of retiring
from the bench, because, through infirmity, he could not follow the
proceedings, was dragged from his bed and called upon to give his
casting vote. Next day, the interlocutor was pronounced—“sustaining the
charges as relevant, repelling the legal defences against treason and
leasing-making, and remitting the indictment, with the defence against
perjury, to the knowledge of an assize.”
This assize consisted of the Marquis of Montrose, a personal enemy of
Argyle, who presided; the Earls of Linlithgow, Roxburgh, Dumfries,
Early, Perth, Dalhousie, Middleton; Lords Sinclair, Lindores,
Burntisland; the Lairds of Gosford, Ballymain, Park, Gordon, and
Claverhouse. A majority of them were political adversaries, predisposed
to condemn. Argyle refused to reply. He saw that his case was prejudged;
and he did not give his enemies the triumph of overwhelming a fruitless
defence. With a vile affectation, the Lord Advocate charged the jury to
bring in a verdict of guilty, or stand the consequences of a process of
error. “And it being proven,” Fountainhall’s expressions, “that he (the
Earl) gave in that explanation which the lords found treasonable, the
assize (being so determined by the interlocutor) could not but find him
guilty of treason and leasing-making, but assoilzied him from the
article of perjury.”
“There was a great outcry,” his lordship adds, “against the criminal
judges for their timorous dishonesty,” and well there might; nor can I
help joining issue with Sir George Lockhart, who “admired how a man
could be condemned as a traitor for saying he would make all amendments
he could to the advantage of church and state!” Were not every
circumstance in this atrocious business as much opposed to common sense
as to law, we might wonder how any set of men above the scale of idiocy
could consent to a process of treason being raised upon such palpable
expressions of loyalty and patriotism; but that men, and these in the
highest rank of society in Scotland, could have been found to bring in a
verdict of guilty, shows what a dreadful want of moral principle then
existed in the country, especially among the elevated classes.
As soon as the verdict was made known, the council met and sent a
letter to the king, requesting leave to order the justiciary to
pronounce sentence of death, but to delay execution during the royal
pleasure. Argyle, who justly dreaded the event, had despatched a
messenger to court to ascertain what he might expect from that
quarter. By him he learned that the king would be prevailed upon to
comply with the council’s desire; and being at the same time
informed that he was to be transferred from the Castle to the common
jail, to which peers were wont to be removed a few days before
execution, he considered that no time was to be lost in providing
for his safety; and on Tuesday the 20th of December, about eight in
the evening, he succeeded in effecting his escape, disguised as the
page of Lady Sophia Lindsay, his step-daughter. Irritated at his
flight, which was doubly galling as they knew he could proclaim, not
to his oppressed country only, but to Europe, the vileness of the
religious tyranny that desolated his country, the council
immediately issued a proclamation, denouncing the fugitive as having
added “the breach of prison to his other crimes, and without waiting
for that clemency which he might have relied upon (!!) if he had not
been conscious to himself of guiltiness that required such an
escape; and commanding all loyal subjects to apprehend the said
Earl, indemnifying those who should kill, mutilate, or slay the said
Earl or his accomplices, if resisting;” besides placing him under
the ban of intercommuning. But the Earl, who could fully estimate
the value of that clemency which he was accused of mistrusting, had
fortunately got beyond their reach. Mr John Scott, minister of
Hawick, directed him to an obscure alehouse, where he met Pringle of
Torwoodlee, by whom he was sent to William Veitch, an exiled
minister, lurking on the borders, under whose direction he was
safely conducted to London, whence he got to Holland—then the place
of refuge for the persecuted Presbyterians.[144]
Footnote 144:
In London, the Earl lodged at the house of a Mr Smith, a sugar baker,
whose lady, a pious woman, with the generosity and fearlessness of her
sex, concealed him at the risk of her own life and fortune, for it was
known that he was in London; and if Burnet be correct, Charles II.
showed on this occasion one of the few praiseworthy traits of his
character. He was informed of Argyle’s retreat, but would not allow
him to be sought after.—A long and interesting account of Argyle’s
escape and journey to London, is given in the Life of Veitch,
published by Dr M’Crie.
The privy council, to strike terror into any who complained of the
injustice of the interlocutor pronounced by the court, named a committee
to call his (Argyle’s) advocates before them for subscribing an opinion
that his explanation contained nothing treasonable, although they
themselves had given these gentlemen authority to plead freely in
defence of their client. When they appeared, some proposed to imprison
and deprive them; nor was it without difficulty that they were allowed
to continue their practice, York observing, if any bad use were made of
their written opinion by spreading it abroad in England to incense the
people, or reproach him or the judges, he should consider them as much
to blame. It was, however, afterwards printed in England along with
Argyle’s trial, where it produced a powerful effect.
It had not been usual, nor was it deemed legal, to pronounce sentence of
forfeiture in absence; but when all the essentials of justice had been
violated, the council did not deem it worth while to stickle at forms.
The Countess gave in a petition to the court of justiciary. It was as
might have been anticipated of no avail. “Archibald Earl of Argyle was
found guilty and culpable of the crimes of treason, leasing-making, and
leasing-telling, and adjudged to be executed to the death; demeaned as a
traitor; his name, memory, and honours to be extinct; and his arms to be
riven forth and deleted out of the book of arms: so that his posterity
may never have place, nor be able hereafter to bruik or enjoy any
honours, offices, titles, or dignities within this realm in time
coming;” and his tacks, stedings, goods, and gear whatsoever remaining
to him “be escheated” to our sovereign lord, to remain perpetually with
his Highness in property; which was pronounced for doom. Within seven
years, the representative of Argyle was the first man in Britain—the
representative of Stuart was a wanderer and a vagabond on the face of
the earth!
Next day, after Argyle’s escape, Fraser of Brea appeared before the
council. Returning home from the south, he had preached in a barn on a
Lord’s day, for which the council ordered him to be summoned as holding
field-conventicles; but on learning the true state of the case, the
summons was stopped, only some of them spoke to Sir Hugh Campbell of
Calder, his surety. Sir Hugh shortly after visiting his friend, found
him lying sick of an ague and proposed writing to the Bishop of
Edinburgh and the Lord Advocate to inform them of his situation, and get
him excused. Mr Fraser, who knew the men, earnestly entreated him not to
interfere, “for if the prelates hear that I am sick, they will instantly
cite me, in hopes that either I cannot appear being sick, and so fall in
the forfeiture of my bond of five hundred and sixty pounds, which they
would gladly be in hands with; or, if I should appear, might thereby
endanger my life.” His surety thought his fears groundless, and
acquainted Bishop Paterson that Mr Fraser was seriously ill, and never
preached in the fields. Immediately the citation was revived, and the
day of his appearance fixed for the 22d of December, when they thought
he certainly could not at that season come from the north, and the bond
must be forfeited; but he most unexpectedly and suddenly recovered, and
arrived in Edinburgh in good health, and his surety with him.
The council, astonished at his appearance, finally referred the case to
the bishops, by whom he was sentenced to pay a fine of five thousand
merks, be imprisoned in Blackness Castle till he paid it, and gave
security not to preach any more, or go off the kingdom. He was
accordingly sent to Blackness Castle, where he remained six weeks, till,
upon the Duke of York’s going to England, accompanied by Bishop Paterson
and his brother—his two great enemies—Mr Fraser’s friends applied to the
council, and procured a liberation and a remission of the fine, upon the
condition of his leaving the kingdom, which he did, and went to reside
at London.
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