1662. the mockery of juftice. All that was faid at this time to excufe the proceeding was, that it was certain his life was in no danger. But fince that depended on the King, it did not excufe those who pafs'd fo base a sentence, and left to pofterity 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 pafs'd againft all perfons, who fhould move the King for reftoring the children of thofe who were attainted by Parliament; which was an unheard-of reftraint on applications to the King for his grace and mercy. This the Earl of Midletoun alfo pafs'd, tho' he had no inftruction 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, tho' without a penalty, made the offenders criminal: And in that cafe they did reckon, that the punishment was arbitrary; only that it could not extend to life. A Committee was next appointed for fetting the fines. They proceeded without any regard to the rules the King had fet them. The most obnoxious compounded fecretly. No confideration was had either of mens crimes, or of their eftates: No proofs were brought. Enquiries were not fo much as made: But as men were delated, they were marked down for fuch a fine: And all was tranfacted in a fecret Committee. When the lift of the men and of their fines was read in Parliament, exceptions were made to divers; particularly fome who had been under age all the time of tranfgreffion, and others abroad.

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 fetting the fine was only this, that fuch perfons fhould have no benefit by the act of

indemnity, unless they paid the fine. Therefore 1662. every one that could ftand upon his innocence, and renounce the benefit of the indemnity, was thereby free from the fine, which was only his compofition for the grace and pardon of the act. So all pafs'd in that great hurry.

The other point, concerning the incapacity, was Some incarried farther than was perhaps intended at first; capacita ted by tho' the Lord Tarbot affured me, he had from ballot. the beginning defigned it. It was infufed into all 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 apprehenfive, that the King could not approve of a Parliament's falling upon a Minifter. So Lord Tarbot propofed two expedients.. The one was, that no perfon fhould be named, but that every member fhould do it by ballot, and should bring twelve names in a paper; and that a fecret Committee of three of every Estate fhould make the fcrutiny; and that they, without making any report to the Parliament, fhould put thofe twelve names on whom the greater number fell in the act of incapacity; which was to be an act apart, and not made a claufe of the act of indemnity. This was taken from the oftracifm in Athens, and feemed the best method in an act of oblivion, in which all that was pafs'd was to be forgotten: And no feeds of feuds would remain, when it was not fo much as known against whom any one had voted. The other expedient was, that a claufe fhould be put in the act, that it fhould 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 fhould diflike the whole thing, yet it would be eafy to foften that, by letting him fee how entirely the act was in his power. Emiffaries were fent to every Parliament man, directing VOL. I.

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him

2. him how to make his lift, that fo the Earls of Lauderdale, Crawford, and Sir Robert Murray, might be three of the number. This was managed fo carefully, that by a great majority they were three of the incapacitated perfons. The Earl of Midletoun pass'd the act, tho' he had no inftruction about it in this form. The matter was fo fecretly carried, that it was not let out till the day before it was done: For they reckoned their fuccefs in it was to depend on the fecrecy of it, and in their carrying it to the King, before he fhould be poffeffed against it by the Earl of Lauderdale, or his party. So they took great care to vifit the packet, and to ftop any that should go to Court poft: And all people were under fuch terror, that no courage was left. Only Lord Lorn fent one on his own horfes, who was to go on in cross roads, till he got into Yorkshire; for they had fecured every ftage to Durham. By this means the Earl of Lauderdale had the news three days before the Duke of Richmond and The King Lord Tarbot got to Court. He carried it prediffently to the King, who could fcarce believe it. peated But when he faw by the letters that it was certainly with this. true, he affured the Earl of Lauderdale, that he would preferve him, and never fuffer fuch a deftructive precedent to pafs. 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 excufe 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 fome fecret friend that had got into their confidence, and had perfuaded them to do as they had done on defign to ruin them. But growing more ferious, he added, he was fure the King on his own account would take care not to fuffer fuch a thing to pass: Otherwise no

man

man could serve him: If way was given to fuch a 1662. method of proceeding, he himfelf would go out of his dominions as faft as his gout would fuffer him.

Two days after this the Duke of Richmond and Lord Tarbot came to Court. They brought the act of incapacity fealed up, together with a letter from the Parliament, magnifying the Earl of Midletoun's fervices, and another letter figned by ten of the Bishops, fetting forth his zeal for the Church, and his care of them all: And in particular they fet out the defign he was then on, of going round fome of the worst affected counties to fee the Church established in them, as a work that was highly meritorious. At the fame time he fent over the Earl of Newburgh to Ireland, to engage the Duke of Ormond to reprefent to the King the good effects that they began to feel in that Kingdom from the Earl of Midletoun's adminiftration in Scotland, hoping the King would not difcourage, much lefs change fo faithful a minifter. The King received the Duke of Richmond and Lord Tarbot very coldly. When they delivered the act of incapacity to him, he affured them, it should never be open'd by him; and faid, their last actings were like madmen, or like men that were perpétually drunk. Lord Tarbot faid, all was yet entire, and in his hands, the act being to live or to die as he pleased: He magnified the Earl of Midletoun's zeal in his fervice, and the loyal affections of his Parliament, who had on this occafion confulted both the King's fafety, and his honour: The incapacity act was only intended, to put it out of the power of men, who had been formerly bad inftruments, to be fo any more: And even that was fubmitted by them to the King's judgment. The King heard them patiently, and, without any farther difcourfe on the fubject, difmiffed them: So they hoped they had mollified him. But the Earl of Lauderdale turned the matter upon the Earl

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1662. Earl of Midletoun and Lord Tarbot, who had made the King believe that the Parliament desired leave to incapacitate fome, whereas no fuch defire had ever been made in Parliament: And then, after the King, upon that mifrepresentation, had given way to it, the Parliament was made to believe, that the King defired, that fome might be put under that cenfure: So that the abufe had been equally put on both: Honours went by ballot at Venice: But punishments had never gone fo, fince the oftracifm at Athens, which was the factious practice of a jealous Commonwealth, never to be fet up as a precedent under a Monarchy: Even the Athenians were afhamed of it, when Ariftides, the jufteft man among them, fell under the cenfure: And they laid it aside not long after.

Great pains taken to excufe

ivlidletoun.

The Earl of Clarendon gave up the thing as inexcufable: But he ftudied to preferve the Earl of Midletoun. The change newly made in the Church of Scotland had been managed by him with zeal and fuccefs: But tho' it was well begun, yet if thefe laws were not maintained by a vigorous execution, the Prefbyterians, who were quite difpirited by the steddiness of his conduct, would take heart again; efpecially if they faw the Earl of Lauderdale grow upon him, whom they looked on as theirs in his heart: So he prayed the King to forgive one fingle fault, that came after fo much merit. He alfo fent advices to the Earl of Midletoun

go on in his care of eftablishing the Church, and to get the Bishops to fend up copious accounts of all that he had done. The King ordered him to come up, and to give him an account of the affairs in Scotland. But he reprefented the abfolute neceffity of feeing fome of the laws lately made put in execution: For it was hoped, the King's difpleasure would be allayed, and go off, if fome time could be but gained.

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