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VII

BOOK months to every species of military outrage, till the appearance of a Dutch fleet in the Forth recalled the troops to the protection of the coast.39

1667.

Trials and conviction

Nor were the judges permitted to escape the inin absence, famy of the times. It was an established maxim, adopted from the Roman law, and even in questions of treason confirmed by statute, that none could be condemned when absent, or deprived by outlawry of a legal trial on their appearance in court.40 A salutary maxim, necessary to prevent the indiscriminate proscription of adverse parties, had been so firmly established, that when trial after death was introduced by statute, the bones of the deceased, to preserve the forms, if not the spirit of justice, were presented at the bar; and when decrees of forfaulture were pronounced in parliament, against the absent, no sentence was passed till they were produced and heard in their own defence.41 But the gentlemen, whose estates the government was desirous to confiscate, remained concealed or were preserved by flight; and the authority of the court of session was required for their conviction. The officers of state, having privately tampered with the judges, presented a series of questions to the court: Where the treason is notorious, if trial

9 Kirkton's MS. Wodrow, i. 264. Naphtali. Hind let loose, 186.

4 Parl. 1587, ch. 91.

41 Montrose and Wariston, though forfeited in his absence, were both heard before sentence was pronounced.

VII.

1667.

be competent after death, why not in absence? if BOOK forfeitures in absence can be pronounced by the legislature, why not by the court of justiciary, to whom, whatever is just in parliament, must be equally competent? An obsequious court, in oppo illegal, sition to the established laws of the realm, did not hesitate, on such fallacious deductions, to deliver a solemn opinion, that the justiciary court might proceed, in the absence of the accused, to the trial and condemnation of such contumacious traitors as refused to appear.42 Of fifty-five gentlemen arraigned in their absence, above twenty were tried and condemned to be executed whenever ap prehended. Their estates were conferred on Dalziel and Drummond, or retained by the officers of state to enrich themselves. Conscious that the opinion of the civil, and the proceedings of the criminal tribunals were illegal, they applied to the next parliament to confirm the sentence, and to enlarge the powers of the justiciary court. They solicited no indemnity nor authority for an illegal punishment, recently introduced. The prisoners Transpor who refused to abjure the covenant, or to subscribe gally in the declaration and oath of supremacy, were condemned to transportation by the king's instructions, and adjudged to servitude in the English plantations. No penalty was annexed to the sta

42 Mackenzie, ii. 74. Wodrow, i. 286. Arnot's Criminal Trials, 80. Even Mackenzie seems to reprobate the 'opinions and trials as illegal. p. 75.

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VII.

1667.

BOOK tute. According to the new maxims of the arbi trary government, that to specify the penalty were to limit, not to enlarge the prerogative, transportation was thus introduced by the privy council as an adequate punishment on the refusal of the oaths.43

Effects of

persecution.

The severities which I have described, or shall hereafter have occasion to relate, may excite surprise and regret, that the government had not yet acquired moderation or lenity from past experi ence, nor discovered that persecution confirms, instead of extirpating, the religious opinions or prejudices of the human mind. The inefficacy of persecution is the discovery of science, but the benefits of toleration are the slow result of the commercial intercourse of men, and of their growing indifference to religious disputes. Every church is inspired with the zeal of procuring proselytes, and unless disarmed by the lukewarm faith of the government and the people, an established church is ever desirous to impose its tenets by force on refractory sects. A government monopolized by an exclusive party, is equally disposed to persecute the adverse faction. The natural operation of power is to vitiate the heart; and it is the tendency even of the best and most refined governments, to relapse into persecution, against which there is no effectual security but popular assem

43 Mackenzie's Observations on Stat. i. 461. Wodrow, i. 270.

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VII.

stitution.

blies equally accessible to every party, and unin- BOOK fluenced by the government which they are intended to control. But the royalists were a fu- 1667. rious and vindictive party, hostile alike to the liberties and religion of the nation. On obtaining On the conthe exclusive possession of power, they dispensed, in a single breath, with the most valuable privileges which the nation had recovered; the liberties and triennial succession of parliaments; the choice of the articles; the freedom of debate; the independence of the judges; and conspired to enlarge, and exalt the prerogative till the government became radically and constitutionally despotical. The prelates by whom the administration was actuated, were mostly apostates from the presbyterian church; indifferent to religion; ambitious and intent on the acquisition of power, which they deemed insecure and precarious, unless severities were daily multiplied for their preservation. The presbyterians incapacitated, and excluded from trust by declarations and oaths, had no means to abate the rigors, and scarcely enjoyed the protection, of government. The humanity of their sovereign, who appeared insensible to their sufferings and complaints, was a feeble resource, His occasional interposition was partial, tardy, and seldom effectual. His choice had invariably been fixed on the worst ministers, as the most devoted to his power; and the presbyterians had reason to lament, that the former recall of the king, and their VOL. IV. E

VII.

BOOK credulous reliance on his royal word, had reduced the nation under a foreign yoke that terminated in their present oppression and servitude.

1667.

A mild administra

tion.

The mismanagement of the Dutch war was productive, however, of an unexpected change in the administration of Scotland. The violence of the two archbishops had been artfully fomented or indulged by Lauderdale, till it reached a crisis destructive to themselves. Their infiuence had established a party in the council superior to his friends, and in order to perpetuate their authority, and to enrich the commanders, who consisted chiefly of their adherents, they proposed to continue the army, and to preserve a military government in the western shires. But their power appeared to be ripe for dissolution. Towards the conclusion of an unfortunate and disgraceful war, the king was compelled to mitigate everywhere the rigors of government, and was disposed to sacrifice even his most faithful servants to the public resentment. The opportunity was seized by the earls of Tweedale and Kincardine, to represent the wretched state to which the country was reduced. The chief support of the prelates was lost by the fall of Clarendon, whose exile deserves to be recorded, like the fetters of Columbus, as a signal memorial of the ingratitude of kings. The first symptom of their decline and disgrace, was an order for Sharp to retire to his diocese from public affairs. Sir Robert Murray, whom the royal society should

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