saids John Spreull, and Robert Ferguson and of May 1679, efter reading acts of their own others ther accomplices, under the command coyning, most treasonablie and wickedlie of Robert Hamiltoun, brother to the laird of burnt severall acts of parliament, asserting his Prestoun; who to the number of three-score majesties prerogatives and establishing the goand upwards, went to the burghe of Ruther-vernment of the church, drowned out bone. glen and ther upon the twentie-nynth day fyres sett on in commemoration of that day, Rutherglen, May 29, would have been followed with what succeeded. ⚫ themselves regularly and peaceably, without 'giving any cause of offence to us, or any in authority and trust under us in our government. For doing whereof these presents ⚫ shall be to you and them, and all others re⚫spectively, who may be therein respectively any way concerned, a sufficient warrant. And so we bid you heartily farewel. Given at our Court at Whitehall, the thirty 'first day of March 1687 and of our reign the third year. By his Majesty's Command. 'MELFORD.' Concerning John Spreull, the father of this John Spreull, I find in Wodrow the following passages: "September 14th 1660. By order of the Committee of estates, John Graham provost of Glasgow and John Spreul town clerk, these were imprisoned in Edinburgh Tolbooth: both of them had been reckoned favourers of the Remonstrance, and yet they were pious and excellent persons. "1664, December 18. The Council pass an art about Mr. Spreul. "Hitherto the persons concerned in that united and contracted meeting before spoken of, had contented themselves with coming to sermons preached in the fields by the ministers and preachers who went their lengths, and defending themselves when attacked: but their numbers increasing as well as their warmth against such as differed from them, Mr. Hamilton, and some others in the company, moved, That somewhat further should be done by them as a testimony against the iniquity of the times. The reader will have the best view of what they came to, from one of their own Papers just now before me, as follows: "After serious consideration and prayer, 'they' (speaking of these concerned in the above-mentioned meeting) resolved to continue in hearing the gospel, and reckoned they would plainly quit their duty, if upon the account of danger they gave up this pri'vilege; and considering the smallness of their number, the strength of their persecuting adversaries, together with their own manifold infirmities and failings, they feared, that, if the Lord in his providence should permit them to be dispersed, or to fall before their enemies, their cause would likewise fall; to the world their testimony to the truth and 'cause which they owned, and against the sins ' and defections of the times.' "These who were violently against the indulgence, entered into this resolution towards the end of May, and Mr. Hamilton was very active in pressing it, and pushing forward a public appearance, as the way to form and strengthen their party, and prevail with others to come and join them when they set up openly against the evils of the time. "The lords of council considering, That Mr. John Spreul, late town clerk in Glasgow, 4having been cited before the commission for church affairs to answer for his disobedience to the laws and disaffection to the govern-therefore they judged it their duty to publish ment thereby established, he for eviting the sentence of the said judicatory, did for some⚫ time withdraw himself forth out of the country, ⚫ and having privately returned, did carry himself most suspiciously, by travelling secretly from place to place, in the night time; for which being apprehended and brought before the council, and the oath of allegiance being ten dered to him, he refused the same, alledging he had not freedom to sign the same by reason of the tie that lay upon him by the oath of the covenant, therefore the said lords judging it unjust that any person should have the benefit of the protection of his majesty, and enjoy the liberties of a free subject, who refuse to give their oath of allegiance, ordain the said Mr. John Spreul to enact himself under the pain of death, to remove out of the kingdom against the first of February next, and not to return without licence, and find caution to behave peaceably till then, under the pam of two thousand pounds, and not to 'go within six miles of Glasgow.' "This rising in the west of Scotland," says Wodrow, like many other considerable turas, had but very small beginnings: and it is scarce to be thought that the persons concerned in them had any prospect that what they did, and particularly their attempt at "In prosecution of this resolution, some were pitched upon, the said Robert Hamilton, brother to the laird of Prestoun, Mr. Thomas Douglas, one of the ministers who preached to them, with about eighty armed men, to go to some public place, and burn the acts and papers which shall just now be named, and publish their declaration. "It needs scarce be again here noticed, That neither this Resolution, nor the underwritten Declaration were formed in any concert with the ministers or people who kept field-meetings in other places, far less with any concurrence of the body of Presbyterians through the nation; and consequently the good or evil in the matter or manner of these is chargeable only upon the few who were en gaged. The 29th of May was by them found to and thereafter they and their accomplices, did most treasonablie waylay a small partie of his majesties forces under the command of the laird of Claverhouse at Loudonbill, and did be the most convenient day for making this appearance, being the anniversary day so much abused, and against which, among other things, they were to testify. I am informed the city of Glasgow was the place where at first they resolved to have published their paper; but hearing the king's forces were many of them come down from Lanerk, and lying there, they altered their resolution, and went to Rutherglen a small royal burgh two miles from Glasgow. "Accordingly they came there in the afternoon, and extinguished the bonefires with which the day was solemnized, and at the market-cross, burnt the papers just now to be mentioned in their testimony, and read publicly, and then affixed upon the cross a copy of the following Declaration: The DECLARATION and TESTIMONY of some of the true Presbyterian Party in Scotland, published at Rutherglen, May 29, 1679. "As the Lord hath been pleased to keep and preserve his interest in this land, by the testimony of faithful witnesses from the begin'ning, so some in our days have not been wanting, who, upon the greatest of hazards, have added their testimony to the testimony of those who have gone before them, and who have suffered imprisonments, finings, forfeitures, banishment, torture and death from an evil and perfidious adversary to the church and kingdom of our Lord Jesus Christ ⚫ in the land. "Now we being pursued by the same adversary for our lives, while owning the in⚫terest of Christ according to his word, and ⚫ the national and solemn league and covenants, judge it our duty (though unworthy, yet hoping we are true members of the church of Scotland) to add our testimony to those of the worthies who have gone before us, in ⚫ witnessing against all things that have been done publicly in prejudice of his interest from the beginning of the work of reformation, especially from the year 1648, downward to the year 1660. But more particularly 'those since, as "1. Against the act recissory, for overturning the whole covenanted reformation. 2. Against the acts for erecting and establishing of abjured prelacy. 3. Against that declaration imposed upon, and subscribed by all persons in public trust, where the covenants are renounced and con most cruellie murder and kill severall of them, posing an holy anniversary day, as they call it, to be kept yearly upon the 29th of May, as a day of rejoicing and thanksgiving for the king's birth and restoration; whereby the appointers have intruded upon the Lord's prerogative, and the observers have given the 'glory to the creature that is due to our Lord Redeemer, and rejoyced over the setting up an usurping power to the destroying the interest of Christ in the land. "6. Against the explicatory act 1669, and the sacrilegious supremacy enacted and • established thereby. "Lastly. Against the acts of council, their "warrants and instructions for indulgence, and 'all other their sinful and unlawful acts, made and executed by them, for promoting their 'usurped supremacy. "And for confirmation of this our testimony, "we do this day, being the 29th of May 1679, 'publicly at the cross of Rutherglen, most justly burn the abovementioned acts, to evidence our dislike and testimony against "the same, as they have unjustly, perfidiously, and presumptuously burned our sacred co 'venants. "And we hope, none will take exception against our not subscribing this our testimony, being so solemnly published; since we are always ready to do in this as shall be judged necessary, by consent of the rest of our suffering brethren in Scotland.” 2 Wodrow 43. Mr. Laing, after relating the assassination of Sharp, proceeds: "The assassination of a prelate and privy counsellor, might be expected to excite a severe inquisition; but the government was inspired with the most frantic revenge. The people were prohibited the use or possession of arms; and in the proclamation to discover the assassins, the whole body of fanatics was impli cated in the crime. Field and armed conventicles were declared to be treason. The people who attended were indirectly ordered to be put to the sword; and when the military were employed to execute this sanguinary proclamation, it was not difficult to predict the insurrection that ensued. The conventicles which persecution alone had created, united into larger masses, and from the very means employed to suppress them, acquired the formidable appearance of a regular army, and of a camp, to which none, except from the near vicinity, repaired unarmed. Parties continued, during the week, in arms, agitated by the murderers of Sharp, who had secretly joined them, and impelled by their preachers to something more than defence. A party of fourscore appeared at Rutherglen, on the anniversary of the restoration; they burnt the statutes and acts of council restoring episcopacy, and proclaimed June 1679, that his majesties forces did attacque and assault them at Bothwel-bridge, wher by God's blissing on his majesties armes, ther numerous and rebellious army was dis sipat, routed and vanquished. Lykeas the saids John Spreull and Robert Ferguson, in the said month of June, and oft' and diverse tymes sensyn did receipt, supplie, and intercomon with, and defend Mr. Samuel Arnot, Mr. John Welsh, the bloodie murderers of the late archbishop of St. Andrews, Mr. Donald Cargill, the deceast Mr. Ritchard Cameron, and sundrie other notorious traitors and rebells, and in tocken of the said John Spreall's guilt, he hes confessed the samen before the lords of his majesties privie council *. Throwe doeing said John Spreull, Robert Ferguson, and ther| accomplices did most treasonablie attack a small partie of his majesties forces, within the toun Glasgowe, by whom they and ther accomplices were defate and repulsed; and still continuing in ther rebellious arms they did swell and growe to the number of ten or twelve thousand, did robb, pilage and search for horse, armes, powder, ball, and other instruments of warr, throwout the shyres of Lanerk, Aire, Renfrewie, and other shyres of this kingdome, and having marched to Hamiltoun they did take the boldnes upon them to issue proclamations and print declarations bearing the treasonable grounds of their rebellion, did modell, and forme themselves in troups, companys, and regiments, nameing collonells of regiments, captaines of compa nies, commanders of troups, and other officers under the command of Robert Hamiltoun, and the bloodie and sacrelegious murderers of the late archbishop of St. Andrews did treasonably beat parlies be drumes and take the boldnes and presumption upon them to send in "The affairs of this, as of all other nations, ther commissioners to the royall camp, trea- are either such as concern the policy of the sonablie requyreing the subversion and over- kingdom in general, or such as respect the disturning of the government of the church, tributing of justice betwixt private parties. The proudlie and insolently boasting of ther trea- policy of government of the kingdom is regusonable armes, in which they and ther accom-lated by his majesty's privy council, in which plices did most treasonablie continue, untill the twentie second day of the said month of I have not met with any full account of the extent of the powers exercised or claimed by the Scotch Privy Council,and of the foundations of those powers respectively, whether prescription, act of parliament or usurpation. Sir George Mackenzie writes thus of the council: the chancellor is president, if he be present, but in his absence the president of the council presides. This office of president in the couneil is a distinct employment, and it gives him the precedency from all the nobility. The number of this judicature is not definite, depending upon his majesty's commission; but all the officers of state are members of it, ratione officii. It has its own signet, and its letters pass by a bill subscribed by any one of the council: upon which warrant the letters are, in their several forms, extended and subscribed by the clerk of the council, and they bear also to be an unsubscribed declaration as their solemn testimony against the defection of the times. A prudent government might have dissembled the insult, or deferred the punishment for a few days till their zeal had subsided, and their conventicle was dispersed. A violent government is incapable either of reflection or delay. Graham of Claverhouse, afterwards the celebrated viscount Dundee, was instructed to seize, or, on their resistance, to extirpate the rebels by the sword. Next Sunday he disco-ex deliberatione dominorum secreti concilii.' vered and attacked their conventicle on Loudoun hill. His dragoons were defeated with loss by a detachment of undisciplined peasants, and he was almost intercepted himself by the gallant Cleland who was killed at the revolution in the defence of Dunkeld. Elated perhaps with success, and afraid to disperse or to return to their homes, they advanced to Glasgow, where they were repulsed at first; but while their numbers were still inconsiderable and easily dissipated, the town was evacuated, and the whole country was abandoned, as if to permit the insurrection to increase. The privy council, so vigilant and prompt to strike while the people were tranquil, recalled its forces to the capital when the people were unwarily betrayed into an insurrection; and amidst the most vigorous preparations throughout the rest of Scotland, a severe administration appeared solicitous only to justify and to enrich itself by the growing magnitude of the revolt." *As to this, see in this Collection the case of James Mitchell, vol. 6, p. 1207. They must be executed at least upon six free days, and a full copy must be given, because all diets here are peremptory and not with continuation of days; the reason whereof is, 'ut reus veniat instructus ad defendendum :' Whereas before the session, a short copy is sufficient, because the summons is given out to see, and a time allowed to answer. The diets are here so peremptory, that if the defender be cited to a day whereupon the council sits not, if he appear at the day to which he is cited, and take instruments at the council chamber, he will not be thereafter obliged to attend, nor can he be denounced fugitive for being absent: for seeing it is peremptory against him, it is reasonable that it should be peremptory for him. "Where many parties are cited as defenders upon a bill to the council, any one or two will be allowed to answer for the rest, they finding caution, and enacting themselves to be liable for whatever shall be decerned against those for whom they undertake: which privilege is granted if no personal punishment be concluded whereof or one or other of the deeds above mentioned, the saids John Spreull and Robert Ferguson have committed and are guilty of against the defenders; but if either the complaint conclude, or that the crime will in law infer a corporal punishment, then the offering to find caution to answer, will not be allowed, nam noxa caput sequi debet,' and no man can bind his body for another, nam nemo ⚫est dominus suorum membrorum.' The pursuer may appear by his procurator, but the defender must either be present, or send a testificate of his sickness upon soul and conscience: and yet it is the privilege of any counsellor, that he may undertake to answer for any defender that is cited, quo casu the defender will not be unlawed, or denounced fugitive upon his absence, but his defences will be received as if he were present, nor can any bill for receiving a complaint, pass against a counsellor, but in presentia. "The council, by the first constitution, were only to take cognizance of what concerned the public peace, and were neither judges in civil cases, nor crimes, but in so far as these infringed upon, or were violations thereof: but now that judicature doth, under the notion of riots, and breaches of the public peace, hear too many causes civil and criminal." the crymes of treason, rebellion and others above mentioned, and are actors airt and part of the samen, which being found be ane assyse, tained to the queen. Twenty-five members, chiefly their own creatures, were appointed commissioners to distribute the equivalent according to their instructions; and as the writs were directed, and the returns made to the privy council, the management of elections, and the nomination of the representatives to both houses, were placed in their hands. They promised Godolphin the most unreserved support; but the Squadroné party applied to the whigs, to dissolve the administration of the privy-council from which they were excluded themselves. [Cunningham, ii. 71. 79.] The situation of Scotland would have been infinitely worse than before the union, if an institution were preserved which was at once a court of justice, and a council of state, wherein policy must ever predominate over the laws. While the legislature remained entire, its oppression was restrained, but if a distinct administration were permitted to subsist, there was no power in the nation to procure the redress of griev ances from the British parliament: the complaints and the applications of the people would have been intercepted; and to suppress their murmurs, the privy-council must have soon After the union of the two crowns of Eng- degenerated into the tyranny practised in former land and Scotland, the government of the latter reigns. [Hardwick's State Papers, ii. 473. country was, in the absence of its king, and the Burnet, v. 300-78,] From the same disinintervals of its parliament, administered merely terested and enlightened views which proby the privy council, of which Mr. Laing (Hist. duced the union, the abrogation of the privycouncil was concerted by lord Somers, with vol. 4, p. 19) observes, that being " at once a court of justice, and a council of state, it necesthe principal whigs. A bill was introduced to sarily became tyrannical: the judicial functions render the union more entire and complete. were united with the executive powers of the The same privy-council was proposed for the state, and a legislative authority was not unfre- whole island; the returns of elections were to quently assumed." He is of opinion too, that be transferred to the sheriffs; and the juristhe expectation of obtaining, by means of this diction of the Scottish council was to be supinstrument, unrestrained by the control of par-plied by justices of peace, an institution often liament, permanent possession of the government of Scotland, was the secret motive which induced Argyle and Queensbury to support the projected incorporating union of the two members of Great Britain. Such a hope, however, they were not suffered to realize. The separate privy council of Scotland was abolished by stat. 6 Ann. ch. 6. Of this event, Mr. Laing's account is as follows: "The union was not yet complete, unless the same government were established in the united kingdoms, with the same laws against state crimes. The motives of the Scottish statesmen in acceding to an union, to govern by means of the privy-council, exempt from the opposition of the country party, or the control of parliament, have been sufficiently explained. A new commission was issued for the privy-council, excluding such as opposed the union. A subordinate, yet distinct administration, was delegated by Godolphin, and en: grossed by Queensberry, Seafield, Mar, and others; through whom alone access was ob attempted but never accomplished, and by re- they ought to be puuished with forfaulture of lyff, land, and goods, to the terror of others to commit the like hereafter. Persewer.-Sir George M'Kenzie of Rosehaugh, our soveraigne lord's Advocate. Procurators in Defence for Spreuall.-Sir George Lockhart, Mr. Walter Pringle, Mr. James Daes, Mr. Alexander Swinton, Mr. David Thoris. His Majesties Advocat produced a warrand for perseweing John Spreull and Robert Ferguson, whereof the tenor followes : EDINBURGH, 9 June 1681. The lords of his Majesty's privie councill * doe ordaine his majesties advocat to persewe a proces of forfaulture against John Spreull *merchant in Glasgowe, and Robert Ferguson * of Letterpine, before the lords of his majesties ⚫justiciarie, for which this shall be his warrand. Extract by me.-Sic subscribitur W. PATERSON.' His Majesties Advocat for obviating debat, declares that he makes use of John Spreull's confession, lybelled only as a mean of probation to adminiculate, the other probation to be led, but does not insist upon that confession at this tyme, either as a cryme per se, nor as a sufficient mean of probation, without being admipiculate as said is. Mr. Walter Pringle for the pannal, alledges, denying always the lybell and the pretendit confession, that the pannall cannot passe to the knowledge of ane inqueist, because it is of fered to be proven, that he being examined before the lords of his majesties privit councill upon the same cryme, and having denyed the same, and all accession thereto, and thereafter the tortor being adhibit to him, and having endured the same two severall tymes, he constantlie denyed the cryme, and consequentlie, by the lawe of this, and all other nations he pected of murder and adultery, they refused to torture bim, albeit it was pressed zealously by his majesty's advocate. "It is a brocard amongst the doctors, that he who offers to abide the torture, purges all against him; and yet Alexander Kennedy other presumptions which can be adduced being pursued for forging some bonds, and nothing being adduced for proving the crimes, save presumptions, offered to abide the torture, but this was refused. "Torture likewise being adduced, purges all former presumptions which preceded the torture, if the person tortured deny what was objected against him; but yet he may be put to the knowledge of an inquest, upon new presumptions, as was found after a learned debate in the case of Toshoch, [See 2 Hume's for the alledged burning the House of FrenCommentaries, 117 and 118] who was tortured draught, August 1632, for it was alledged, that torture is intended for bringing the verity to light, and as he had been condemned, if he had confest, so he should be assolied when he denies, else no man would endure the torture, if they were not persuaded, that upon denial they should be cleared, but would confess, and not endure so much torment unnecessarily; so that the inquisition would be the occasion of much sin, and make men die with a lie in their mouth: and therefore torture is called 'probatio ultima,' vid. Clar. quest. 64. Yet Spot, Maxwell of Garrery, and others, were condemned after torture, upon other probation than was deduced before the torture." "I remember it was debated in council, anno 1666, if the West-country men who were consame government through the whole island. demned for treason might after sentence be So variously are our feelings modified and af- tortured, for clearing who were their accomfected by our personal interest, that the loss of plices; and it was found that they could not, a venerable institution was deplored by those 'nam post condemnationem judices functi sunt who had sacrificed the constitution and the in-officia;' yet all lawyers are of opinion, that dependence of their country without a pang even after sentence, criminals may be tortured of regret. [Letters from the earl of Mar to his for knowing who were the complices. brother, MS.] The concluding labours of the privy-council were usefully employed in recalling the coin, and in altering its denomination." "One of the privileges of minors is, that they cannot be subjected to torture, lest the tenderness both of their age and judgment, make them fail ὁ ἥττων τῶν δεκατέσσαρων ἔτων έχ pra ta jubacavov new. Eclog. de quæst. cap. 9. ad. Yet L. 5, ff. de quest. Judges are discharged only to torture such as are under fourteen. Persons very old were not to be tortured, for the same reason, L. 3. ff. ad S. C. Sillan. Which was by some extended to women, sick persons, and such as had been eminent in any nation for learning or other arts; but all this is arbitrary with us. "Torture," says Mackenzie, "is seldom used with us, because some obstinate persons do oft times deny truth, whilst others who are frail and timorous, confess for fear what is not true. And it is competent to none, but to the council, or justices, to use torture in any case, and therefore they found, that sir William Ballenden, as a captain, could not torture, though it was alledged, that this was necessary sometimes for knowing the motions of the enemy, "Those who torture, if the person tortured and might be necessary and allowed in some die, are punishable as murderers, but though cases to soldiers, for the good of the common- they die not, yet by the civil law they were pu wealth. And the council are so tender in tornished deportatione in insulam,' or by banish ture, that though many presumptions were ad- ment; and with us they are purishedkiccording duced against Giles Thyre, Englishman, sus- to the quality of the crime."` |