by Wilmot, earl of Rochester, when he died. He fancied that he had told me many things, of which I might make an ill use: yet he had read the book that I wrote concerning him, and spoke well of it. In this state I was in the king's thoughts, when lord Halifax carried me to him, and introduced me with a very extraordinary compliment, that he did not bring me to the king to put me in his good opinion, so much as to put the king in my good opinion: and added, he hoped that the king would not only take me into his favour, but into his heart. The king had a peculiar faculty of saying obliging things with a very good grace: among other things he said, he knew that, if I pleased, I could serve him very considerably; and that he desired no service from me longer than he continued true to the church, and to the law. Lord Halifax upon that added, that the king knew he served him on the same terms, and was to make his stops. The king and he fell into some discourse about religion. Lord Halifax said to the king, that he was the head of the church: to which the king answered, that he did not desire to be the head of nothing; for indeed he was of no church. From that the king run out into much discourse about lord Shaftesbury, who was shortly to be tried: he complained with great scorn of the imputation of subornation that was cast on himself. He said, he did not wonder that the earl of Shaftesbury, who was so guilty of those practices, should fasten them on others. The discourse lasted half an hour very hearty and free so I was in favour again; but I could not hold it. I was told I kept ill company : the persons lord Halifax named to me were the earl of Essex, lord Russel, and Jones. But I said, I would upon no consideration give over conversing with my friends: so I was where I was before. A bill of indictment was presented to the grand jury against lord Shaftesbury. The jury was composed of many of the chief citizens of London. The witnesses were examined in open court, contrary to the usual custom : the witnesses swore many incredible things against him, mixed with other things that looked very like his extravagant way of talking. The draught of the association was also brought as a proof of his treason, though it was not laid in the indictment, and was proved only by one witness. The jury returned ignoramus upon the bill. Upon this the court did declaim with open mouth against these juries; in which they said the spirit of the party did appear, since men, even upon oath, shewed they were resolved to find bills true or ignoramus, as they pleased, without regarding the evidence And upon this a new set of addresses went round the kingdom, in which they expressed their abhorrence of that association found in lord Shaftesbury's cabinet; and complained, that justice was denied the king; which were set off with all the fulsome rhetoric that the penners could varnish them with. It was upon this occasion said, that the grand jury ought to find bills even upon dubious evidence, much more when plain treason was sworn, since all they did in finding a bill was only to bring the person to his trial, and then the falsehood of the witnesses was to be detected. But in defence of these ignoramus juries it was said, that by the express words of their oath they were bound to make true presentments of what should appear truc to them: and therefore, if they did not believe the evidence, they could not find a bill, though sworn to. A book was written to support that, in which both law and reason were brought to confirm it: it passed as written by lord Essex, though I understood afterwards it was written by Somers, who was much esteemed and often visited by lord Essex, and who trusted himself to him, and wrote the best papers that came out in that and since you were pleased to direct me to send you, through Mr. Chiffinch's hands, such informations as I thought fit to convey to you, I hope your majesty will not be offended, if I have made this use of that liberty. I am sure I can have no other design in it, but your good; for I know very well, this is not the method to serve any ends of my own. I therefore throw myself at your feet, and once more, in the name of God, whose servant I am, do most humbly beseech your majesty, to consider of what I have written, and not to despise it for the meanness of the person who has sent it, but to apply yourself to religion in earnest; and I dare assure you of many blessings both temporal and spiritual in this life, and of eternal glory in the life to come: but if you will go on in your sins, the judgments of God will probably pursue you in this life, so that you may be a proverb to after-ages; and after this life, you will be for ever miserable; and I, your poor subject that now am, shall be a witness against you in the great day, that I gave you this free and faithful warning. "Sir, no person alive knows, that I have written to you to this purpose; and I chose this evening, hoping that your exercise to-morrow may put you into a disposition to weigh it more carefully. I hope your majesty will not be offended with this sincerc expression of my duty to you; for 1 durst not have ventured on it, if I had not thought myself bound to it, both by the duty I owe to God, and that which will ever oblige me to be, 66 May it please your majesty, &c." time. It is true, by the practice that had generally prevailed, grand juries were easy in finding bills upon a slight and probable evidence. But it was made out, that the words of their oath, and the reason of the law seemed to oblige them to make no presentments but such as they believed to be true. On the other hand a private ill opinion of a witness, or the looking on a matter as incredible, did not seem to warrant the return of an ignoramus : that seemed to belong to the jury on life and death*. The chief complaint that was made in the addresses was grounded on their not finding the bill on the account of the draught of the association; and this was in many respects very unreasonable. For as that was not laid in the bill, so there was but one witness to prove it; nor did the matter of the paper rise up to the charge of high treason. And now Dugdale and Turbervill, who had been the witnesses upon whose evidence lord Stafford was condemned, being within a year detected, or at least suspected of this villany, I could not but reflect on what he said to me, that he was confident I should see within a year that the witnesses would be found to be rogues. Mr. Walpole says, that the work alluded to by Burnet, probably was a pamphlet attributed to Somers, entitled "The Security of Englishmen's Lives: or the trust, power, and duty of the grand juries of England, explained according to the fundamentals of the English government, &c."-(Walpole's Catalogue of Royal and Noble Authors.) This pamphlet was first printed in the year 1681; and a second edition, with Somers' name prefixed, was published in 1766. Its spirit will appear from a very few extracts. "Our ancestors have been famous in their generations for wisdom, piety, and courage, in forming and preserving a body of laws to secure themselves and their posterities from slavery and oppression, and to maintain their native freedoms to be subject only to the laws made by their own consent in their general assemblies, and to be put in execution chiefly by themselves, their officers, and assistants; to be guarded and defended from all violence and force by their own arms, kept in their own hands, and used at their own charge under their prince's conduct; intrusting nevertheless an ample power to their kings and other magistrates, that they may do all the good, and enjoy all the happiness, that the largest soul of man can honestly wish; and carefully providing such means of correcting and punishing their ministers and counsellors, if they transgress the laws, that they might not dare to abuse or oppress the people, or design against their freedom or welfare." Imitating the example set by their ancestors, the pamphlet warns its contemporaries that "it now falls to our lot to preserve their liberties against the dark contrivances of a popish faction, who would by frauds, shamplots, and infamous perjuries, deprive us of our birth rights, and turn the points of our swords (the laws) into our own bowels, with designs to overturn the monarchy, because they would have excluded a popish successor, and provided for the security of the religion and lives of all protestants." "Our law-makers foresaw both their dangers from malice and passion, that might cause some of private condition to accuse others falsely in the courts of justice, and the great hazards of worthy and eminent men's lives, from the malice, emulation, and ill designs of corrupt ministers of state, or otherwise potent persons, who might commit the most odious of murders in the form and course of justice, either by corrupting of judges, as dependent upon them for their honour and great revenue, or by bribing and hiring men of depraved principles, and desperate fortunes, to swear falsely against them. Therefore for securing equal and impartial justice, it is made a fundamental in our government, that, unless it be by parliament, no man's life shall be touched for any crime whatsoever, save by the judgment of at least twenty-four men; that is, twelve, or more, to find the bill of indictment, whether he be peer of the realm, or commoner; and twelve peers, or above, if a lord; if not, twelve commoners, to give the judgment upon the general issue joined." It then proceeds to remark upon the importance that has always been afforded to the institution of the grand inquest or jury, and the care that has been taken to insure them being as free as possible from any unworthy influence" I know too well," it continues, "that the wisdom and care of our ancestors in this institution of grand juries, hath not been of late considered as it ought; nor the laws concerning them duly observed; nor have the gentlemen and other men of estates. in the several counties, discerned how insensibly their legal power and jurisdiction in their grand and petit juries is decayed, and much of the means to preserve their own lives and interests, taken out of their hands. It is a wonder that they were not more awakened with the attempt of the late lord chief justice Keyling, who would have usurped a lordly, dictatorial power over the grand jury of Somersetshire, and commanded them to find a bill of indictment for murder, for which they saw no evidence; and upon their refusal, he not only threatened the jury, but assumed to himself an arbitrary power to fine them." "But upon the complaint of one sir Hugh Windham, foreman of the said jury, and a member of the long parliament, the commons brought the then chief justice to their bar, to acknowledge his fault." It had been maintained in several party works that the grand jury have only to determine whether there is a probability of guilt in the prisoner, and that he ought to be tried; and that far less evidence will warrant a grand jury's indictment than a petit jury's verdict. Against this doctrine Somers strenuously and convincingly argues, and from the whole concludes that "if there ought to be any difference in the proceedings of the grand and petit juries, the greater exactness and diligence seems to be required in the former: for as the same work of finding out the truth, in order to the doing of justice, is allotted unto both, the greatest part of the burthen ought to lie upon them that have the best opportunities of performing it. The invalidity, weakness, or defects of the proofs may be equally evident to either of them; but if there be deceit in stifling true testimonies, or malice in suborning wicked persons to bring in such as are false, the grand jury may most easily, nay probably only can discover it: they are not straightened in time; they may freely examine in private, without interruption from the counsel or court, such witnesses as are presented unto them, or they shall think fit to call: they may jointly or severally inquire of their friends or acquaintance after the lives and reputations of the witnesses, or the accused persons, and all circumstances relating unto the matter in question, and consult together under the seal of secrecy.' a The Grand Juryman's Oath and Office, &c. He As to Turbervill, what happened soon after this will perhaps mitigate the censure. was taken with the small-pox in a few days after lord Shaftesbury's trial. The symptoms were so bad that the physician told him he had no hope of his recovery; upon which he composed himself to die as became a Christian, and sent for Mr. Hewes, the curate of St. Martin's, who was a very worthy man, and from whom I had this account of him. Turbervill looked on himself as a dead man at the first time he came to him; but his disease did no way affect his understanding or his memory. He seemed to have a real sense of another state, and of the account that he was to give to God for his past life. Hewes charged him to examine himself, and, if he had sworn falsely against any man, to confess his sin and glorify God, though to his own shame. Turbervill, both in discourse and when he received the sacrament, protested that he had sworn nothing but the truth, in what he deposed both against lord Stafford and the earl of Shaftesbury; and renounced the mercies of God, and the benefit of the death of Christ, if he did not speak the plain and naked truth without any reservation: and he continued in the same mind to his death. So here were the last words of dying men, against the last words of those that suffered. To this may well be added, that one who died of sickness, and under a great depression in his spirits, was less able to stifle his conscience, and resist the impressions that it might then make on him, than a man who suffers on a scaffold, where the strength of the natural spirits is entire, or rather exalted by the sense of the cause he suffers for. And we know that confession and absolution in the church of Rome give a quiet, to which we do not pretend, where these things are said to be only ministerial, and not authoritative. About a year before this Tonge had died, who first brought out Oates. They quarrelled afterwards, and Tonge came to have a very bad opinion of Oates, upon what reason I know not. He died with expressions of a very high devotion; and he protested to all who came to see him, that he knew of no subornation in all that matter, and that he was guilty of none himself. These things put a man quite in the dark, and in this mist matters must be left till the great revelation of all secrets. And there I leave it, and from the affairs of England turn to give an account of what passed in Scotland during this disorder among us here. The duke behaved himself upon his first going to Scotland in so obliging a manner, that the nobility and gentry, who had been so long trodden on by duke Lauderdale and his party, found a very sensible change; so that he gained much on them all. He continued still to support that side; yet things were so gently carried that there was no cause of complaint. It was visibly his interest to make that nation sure to him, and to give them such an essay of his government, as might dissipate all the hard thoughts of him with which the world. was possessed; and he pursued this for some time with great temper, and as great success. He advised the bishops to proceed moderately, and to take no notice of conventicles in houses, and that would put an end to those in the fields. In matters of justice he showed an impartial temper, and encouraged all propositions relating to trade; and so, considering how much that nation was set against his religion, he made a greater progress in gaining upon them than was expected. He was advised to hold a parliament there in the summer eighty-one, and to take the character of the king's commissioner upon himself. A strange spirit of fury had broken loose on some of the presbyterians, called Cargillites, from one Cargill, who had been one of the ministers of Glasgow in the former times, and was then very little considered, but now was much followed, to the great reproach of the nation. These held that the king had lost the right of the crown by his breaking the covenant which he had sworn at his coronation: so they said he was their king no more; and by a formal declaration they renounced all allegiance to him, which a party of them affixed to the cross of Dumfries, a town near the west border. The guards fell upon a party of them, whom they found in arms, where Cameron, one of their furious teachers (from whom they were also called Cameronians), was killed; but Hackston, that was one of the archbishop's murderers, and Cargill were taken. Hackston, when brought before the council, would not own their authority, nor make any answer to their questions. He was so low, by reason of his wounds, that it was thought he would die in the question if tortured; so he was in a very summary way condemned to have both his hands cut off, and then to be hanged. All this he suffered with a constancy that amazed all people; he seemed to be all the while as in an enthusias tical rapture, and insensible of what was done to him. When his hands were cut off, he asked, like one unconcerned, if his feet were to be cut off likewise. And he had so strong a heart, that notwithstanding all the loss of blood by his wounds, and the cutting off his hands, yet when he was hanged up, and his heart cut out, it continued to palpitate some time after it was on the hangman's knife, as some eye-witnesses assured me. Cargill and many others of that mad sect, both men and women, suffered with an obstinacy that was so particular, that though the duke sent the offer of pardon to them on the scaffold, if they would only say, "God bless the King," it was refused with great neglect. One of them, a woman, said, very calmly, "she was sure God would not bless him, and that, therefore, she would not take God's name in vain." Another said more sullenly, that she would not worship that idol, nor acknowledge any other king but Christ. And so both were hanged. About fifteen or sixteen died under this delusion, which seemed to be a sort of madness, for they never attempted anything against any person, only they seemed glad to suffer for their opinions. The duke stopped that prosecution, and appointed them to be put in a house of correction, and to be kept at hard labour. Great use was made of this by profane people to disparage the suffering of the martyrs for the Christian faith, from the unshaken constancy which these frantic people expressed. But this is undeniable, that men who die maintaining any opinion, show that they are firmly persuaded of it; so from this the martyrs of the first age, who died for asserting a matter of fact, such as the resurrection of Christ, or the miracles that they had seen, showed that they were well persuaded of the truth of those facts. And that is all the use that is to be made of this argument. Now the time of the sitting of the parliament drew on. The duke seeing how great a man the earl of Argyle was in Scotland, concluded it was necessary for him either to gain him, or to ruin him. Lord Argyle gave him all possible assurances that he would adhere to his interest in every thing, except in the matters of religion; but added, that if he went to meddle with these, he owned to him freely that he would oppose him all he could. This was well enough taken in show; but lord Argyle said, he observed ever after that such a visible coldness and distrust, that he saw what he might expect from him. Some moved the excepting against the duke's commission to represent the king in parliament, since by law no man could execute any office without taking the oaths; and above forty members of parliament promised to stick to duke Hamilton, if he would insist on that. But Lockhart and Cunningham, the two lawyers on whose opinion they depended chiefly, said that a commission to represent the king's person fell not under the notion of an office: and since it was not expressly named in the acts of parliament, they thought it did not fall within the general words of "all places and offices of trust." So this was laid aside; and many who were offended at it complained of duke Hamilton's cowardice. He said for himself, he had been in a storm for seven years' continuance by his opposing duke Lauderdale, and that he would not engage in a new one with a stronger party, unless he was sure of the majority; and they were far from pretending to be able to bring matters to near an equality. The first act that passed was one of three lines, confirming all the laws formerly made against popery; the duke thought it would give a good grace to all that should be done afterwards, to begin with such a general and cold confirmation of all former laws. Some moved that a committee might be appointed to examine all the former laws (since some of them seemed unreasonably severe, as passed in the first heat of the Reformation), that so they might draw out of them all such as might be fit not only to be confirmed, but to be executed by better and more proper methods than those prescribed in the former statutes, which had been all eluded. But it was not intended that this new confirmation should have any effect; and therefore this motion was not harkened to. But the act was hurried on and passed. The next act was for the unalterableness of the succession of the crown. It was declared high treason ever to move for any alterations in it. Lord Argyle ran into this with zeal, so did duke Hamilton; and all others that intended to merit by it made harangues about it. Lord Tweedale was the only man that ventured to move, that the act might be made as strict as was possible with relation to the duke; but he thought it not necessary to carry it further; since the queen of Spain stood so near the succession, and it was no amiable thing to be a province to Spain. Many were so ignorant as not to understand the relation of the queen of Spain to the king, though she was his niece, and thought it an extravagant motion. He was not seconded, and the act passed without one contradictory vote. There was an additional revenue given for some years for keeping up more troops. Some complaints were also made of the lords of regalities, who have all the forfeitures and the power of life and death within their regalities. It was upon that promised that there should be a regulation of these courts, as there was indeed great cause for it, these lords being so many tyrants up and down the country; so it was intended to subject these jurisdictions to the supreme judicatories. But the act was penned in such words as imported that the whole course of justice all over the kingdom was made subject to the king's will and pleasure; so that instead of appeals to the supreme courts, all was made to end in a personal appeal to the king; and by this means he was made master of the whole justice and property of the kingdom. There was not much time given to consider things, for the duke, finding that he was master of a clear majority, drove on everything fast, and put bills on a very short debate to the vote, which went always as he had a mind to have it. An accident happened that begot in many a particular zeal to merit at his hands. Lord Rothes, who had much of his confidence, and was chiefly trusted by him, and was made a duke by his means, died the day before the opening of the parliament; so upon the hopes of succeeding him, as there were many pretenders, they tried who could deserve it best, by the most compliant submission and the most active zeal. As they were going on in public business, one stood up in parliament and accused lord Halton, duke Lauderdale's brother, of perjury, on the account of Mitchell's business. He had in his hands the two letters that lord Halton had written to the earl of Kincardine, mentioning the promise of life that was made him; and, as was told formerly, lord Halton swore at his trial that no promise was made. The lord Kincardine was dead a year before this; but his lady had delivered those letters to be made use of against lord Halton. Upon reading them the matter appeared plain. The duke was not ill pleased to have both duke Lauderdale and him thus at mercy; yet he would not suffer the matter to be determined in a parliamentary way; so he moved, that the whole thing might be referred to the king, which was immediately agreed to. So that infamous business was made public, and yet stifled at the same time; and no censure was ever put on that base action. Another discovery was made of as wicked a conspiracy, though it had not such bad effects, because the tools employed in it could not be wrought up to such a determined pitch of wickedness. The lord Bargeny, who was nephew to duke Hamilton, had been clapped up in prison, as concerned in the rebellion of Bothwell-bridge. Several days were fixed on for his trial, but it was always put off; and at last he was let out without having any one thing ever objected to him. When he was at liberty he used all possible endeavours to find out on what grounds he had been committed. At last he discovered a conspiracy, in which Halton and some others of that party were concerned. They had practised on some, who had been in that rebellion, to swear that he and several others were engaged in it, and that they had sent them out to join in it. They promised these witnesses a large share of the confiscated estates, if they went through in the business. Depositions were prepared for them, and they promised to swear them. Upon which a day was fixed for their trial. But the hearts of those witnesses failed them, or their consciences rose upon them; so that when the day came on they could not bring themselves to swear against an innocent man, and plainly refused to do it. Yet, upon new practices and new hopes, they again resolved to swear boldly; upon which new days had been set twice or thrice; and, their hearts turning against it, they were still put off. Lord Bargeny had full proofs of all this ready to be offered; but the duke prevailed to have this likewise referred to the king; and it was never more heard of. This showed what duke Lauderdale's party were capable of. It likewise gave an ill character of the duke's zeal for justice, and against false swearing; though that had been the chief topic of discourse with him for above three years. He was angry at a supposed practice with witnesses, when it fell upon his own party; but now that there were evident proofs of perjury and subornation, he stopped proceedings under pretence of referring it to the king: who was never made acquainted with it, or at least never enquired after the proof of these allegations, nor ordered any proceedings upon them. |