peculiarly impressive, every eye was suffused with BOOK tears.37 VII 1667. Military As if public vengeance were not yet satiated, military execution was introduced into the West. execution. The severities which Turner had inflicted on the people, were surpassed by Dalziel and Drummond; officers of a brutal character, inured to cruelty in the Russian service. Some were put to the sword, or executed on the highway without a trial; others were tortured with lighted matches fastened to their fingers, to extort confession; and among the atrocities imputed to Dalziel, a son was executed because he refused to discover his father; and a woman accessory to her husband's escape, was tortured to death.38 The soldiers were indulged in every species of military excess. Rapes, robberies, and murder were committed with impunity, and the prisoners arrested on suspicion were stript and thrust into crowded, contracted, and unwholesome gaols. Instead of imposing penalties, a sufficient number of soldiers were quartered on recusants, to ruin or eat them up in a single night. The clergy, instead of interceding for the people, abetted the crimes of the military with whom they associated; aided or directed their violence; connived at their excesses; and amidst calamities productive of a transient conformity, rejoiced at the golden age which the church enjoyed. The western counties were subjected for seven VII 1667. Trials and conviction 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 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.4 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 39 Kirkton's MS. Wodrow, i. 264. Naphtali. Hind let loose, 186. 40 Parl. 1587, ch. 91. 4 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. Of fifty-five gentlemen arraigned in their absence, above twenty were tried and condemned to be executed whenever apprehended. 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 tothe declaration and oath of supremacy, were condemned to transportation by the king's instructions, and adjudged to servitude in he 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 tation ille duced. VII. 1667. BOOK tute. tute. According to the new maxims of the arbitrary government, that to specify the penalty were to limit, not to enlarge the prerogative, transporta-tion 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 experience, 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. VII. 1667. 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 furious 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 presbyte rian 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 protec tion, 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 |