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1662. gancies the earl of Midletoun's whole conduct fell under such an universal odium, and so much contempt, that, as his own ill management forced the king to put an end to his ministry, so he could not have served there much longer with any reputation.

One instance of unusual severity was, that a letter of the lord Lorn's to the lord Duffus was intercepted, in which he did a little too plainly, but very truly, complain of the practices of his enemies in endeavouring to possess the king against him by many lies: but he said, he had now discovered them, and had defeated them, and had gained the person upon whom the chief among them depended. This was the earl of Clarendon, upon whom the earl of Berkshire had wrought so much, that he resolved to oppose his restoration no more: and for this the earl of Berkshire was to have a thousand pounds. This letter was carried into the parliament, and complained of as leasing-making; since lord Lorn pretended, he had discovered the lies of his enemies to the king, which was a sowing dissension between the king and his subjects, and the creating in the king an ill opinion of them. So the parliament desired, the king would send him down to be tried upon it. The king thought the letter very indiscreetly writ, but could not see any thing in it that was criminal. Yet, in compliance with 149 the desire of so zealous a parliament, lord Lorn was sent down upon his parole: but the king writ positively to the earl of Midletoun, not to proceed to the execution of any sentence that might pass upon him. Lord Lorn, upon his appearance, was made a prisoner: and an indictment was brought against him for leasing-making. He made no defence: but in a long speech he set out the great provocation he 1662. had been under, the many libels that had been printed against him: some of these had been put in the king's own hands, to represent him as unworthy of his grace and favour: so, after all that hard usage, it was no wonder, if he had writ with some sharpness: but he protested, he meant no harm to any person; his design being only to preserve and save himself from the malice and lies of others, and not to make lies of any. In conclusion, he submitted to the justice of the parliament, and cast himself on the king's mercy. He was upon this condemned to Lorn condie, as guilty of leasing-making: and the day of hisdcmnedexecution was left to the earl of Midletoun by the parliament.

I never knew any thing more generally cried out on than this was, unless it was the second sentence passed on him twenty years after this, which had more fatal effects, and a more tragical conclusion. He was certainly born to be the signalest instance in this age of the rigour, or rather of the mockery, of justice. All that was said at this time to excuse the proceeding was, that it was certain his life was in no danger. But since that depended on the king, it did not excuse those who passed so base a sentence, and left to posterity the precedent of a parliamentary judgment, by which any man may be condemned for a letter of common news. This was not all the fury with which this matter was driven: for an act was passed against all persons, who should move the king for restoring the children of those who were attainted by parliament; which was an unheard-of restraint on applications to the king for his grace and mercy. This the earl

1662. of Midletoun also passed, though he had no instruction for it. There was no penalty put in the act: for it was a maxim of the pleaders for prerogative, that the fixing a punishment was a limitation on the crown: whereas an act forbidding any thing, though without a penalty, made the offenders criminal: and in that case they did reckon, that the punishment was arbitrary; only that it could not extend to life. A committee was next appointed for setting the fines. They proceeded without any regard to the rules the king had set them. The most obnoxious compounded secretly. No consideration was had either of men's crimes or of their estates: no proofs were brought. Inquiries were not so much as made: but as men were delated, they 150were marked down for such a fine: and all was transacted in a secret committee. When the list of the men and of their fines was read in parliament, exceptions were made to divers; particularly some who had been under age all the time of transgression, and others abroad. But to every thing of that kind an answer was made, that there would come a proper time in which every man was to be heard in his own defence: for the meaning of setting the fine was only this, that such persons should have no benefit by the act of indemnity, unless they paid the fine: therefore every one that could stand upon his innocence, and renounce the benefit of the indemnity, was thereby free from the fine, which was only his composition for the grace and pardon of the act. So all passed in that great hurry.

pacibttcdby '^ie 0*ner Pomt, concerning the incapacity, was baiiot. carried farther than was perhaps intended at first; though the lord Tarbot assured me, he had from the beginning designed it. It was infused into all 1662. people, that the king was weary of the earl of Lauderdale, but that he could not decently throw him off, and that therefore the parliament must help him with a fair pretence for doing it. Yet others were very apprehensive, that the king could not approve of a parliament's falling upon a minister. So lord Tarbot proposed two expedients. The one was, that no person should be named, but that every member should do it by ballot, and should bring twelve names in a paper; and that a secret committee of three of every estate should make the scrutiny; and that they, without making any report to the parliament, should put those twelve names on whom the greater number fell in the act of incapacity; which was to be an act apart, and not made a clause of the act of indemnity. This was taken from the ostracism in Athens, and seemed the best method in an act of oblivion, in which all that was passed was to be forgotten: and no seeds of feuds would remain, when it was not so much as known against whom any one had voted. The other expedient was, that a clause should be put in the act, that it should have no force, and that the names in it should never be published, unless the king should approve of it. By this means it was hoped, that, if the king should dislike the whole thing, yet it would be easy to soften that, by letting him see how entirely the act was in his power. Emissaries were sent to every parliament man, directing him how to make his list, that so the earls of Lauderdale, Crawford, and sir Robert Murray, might be three of the number. This was managed so carefully, that by a great majority they were

1662. three of the incapacitated persons. The earl of Midletoun passed the act, though he had no instruc151tion about it in this form. The matter was so secretly carried, that it was not let out till the day before it was done: for they reckoned their success in it was to depend on the secrecy of it, and in their carrying it to the king, before he should be possessed against it by the earl of Lauderdale or his party. So they took great care to visit the packet, and to stop any that should go to court post: and all people were under such terror, that no courage was left. Only lord Lorn sent one on his own horses, who was to go on in cross roads, till he got into Yorkshire; for they had secured every stage to Durham. By this means the earl of Lauderdale had the news three days before the duke of RichThe king mond and lord Tarbot got to court. He carried it piTasedwith presently to the king, who could scarce believe it. ,h'5 But when he saw by the letters that it was certainly true, he assured the earl of Lauderdale, that he would preserve him, and never suffer such a destructive precedent to pass. He said, he looked for no better upon the duke of Richmond's going to Scotland, and his being perpetually drunk there. This mortified the earl of Lauderdale; for it looked like the laying in an excuse for the earl of Midletoun. From the king, by his orders, he went to the earl of Clarendon, and told all to him. He was amazed at it; and said, that certainly he had some secret friend that had got into their confidence, and had persuaded them to do as they had done on design to ruin them. But growing more serious, he added, he was sure the king on his own account would take care not to suffer such a thing to pass:

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