This assize consisted of the Marquis of Montrose, a personal enemy of Argyle, who presided; the Earls of Linlithgow, Roxburgh, Dumfries, Early, Perth, Dalhousie, Middleton; Lords Sinclair, Lindores, Burntisland; the Lairds of Gosford, Ballymain, Park, Gordon, and Claverhouse. A majority of them were political adversaries, predisposed to condemn. Argyle refused to reply. He saw that his case was prejudged; and he did not give his enemies the triumph of overwhelming a fruitless defence. With a vile affectation, the Lord Advocate charged the jury to bring in a verdict of guilty, or stand the consequences of a process of error. “And it being proven,” Fountainhall’s expressions, “that he (the Earl) gave in that explanation which the lords found treasonable, the assize (being so determined by the interlocutor) could not but find him guilty of treason and leasing-making, but assoilzied him from the article of perjury.”
“There was a great outcry,” his lordship adds, “against the criminal judges for their timorous dishonesty,” and well there might; nor can I help joining issue with Sir George Lockhart, who “admired how a man could be condemned as a traitor for saying he would make all amendments he could to the advantage of church and state!” Were not every circumstance in this atrocious business as much opposed to common sense as to law, we might wonder how any set of men above the scale of idiocy could consent to a process of treason being raised upon such palpable expressions of loyalty and patriotism; but that men, and these in the highest rank of society in Scotland, could have been found to bring in a verdict of guilty, shows what a dreadful want of moral principle then existed in the country, especially among the elevated classes.
As soon as the verdict was made known, the council met and sent a letter to the king, requesting leave to order the justiciary to pronounce sentence of death, but to delay execution during the royal pleasure. Argyle, who justly dreaded the event, had despatched a messenger to court to ascertain what he might expect from that quarter. By him he learned that the king would be prevailed upon to comply with the council’s desire; and being at the same time informed that he was to be transferred from the Castle to the common jail, to which peers were wont to be removed a few days before execution, he considered that no time was to be lost in providing for his safety; and on Tuesday the 20th of December, about eight in the evening, he succeeded in effecting his escape, disguised as the page of Lady Sophia Lindsay, his step-daughter. Irritated at his flight, which was doubly galling as they knew he could proclaim, not to his oppressed country only, but to Europe, the vileness of the religious tyranny that desolated his country, the council immediately issued a proclamation, denouncing the fugitive as having added “the breach of prison to his other crimes, and without waiting for that clemency which he might have relied upon (!!) if he had not been conscious to himself of guiltiness that required such an escape; and commanding all loyal subjects to apprehend the said Earl, indemnifying those who should kill, mutilate, or slay the said Earl or his accomplices, if resisting;” besides placing him under the ban of intercommuning. But the Earl, who could fully estimate the value of that clemency which he was accused of mistrusting, had fortunately got beyond their reach. Mr John Scott, minister of Hawick, directed him to an obscure alehouse, where he met Pringle of Torwoodlee, by whom he was sent to William Veitch, an exiled minister, lurking on the borders, under whose direction he was safely conducted to London, whence he got to Holland—then the place of refuge for the persecuted Presbyterians.[[144]]
[144]. In London, the Earl lodged at the house of a Mr Smith, a sugar baker, whose lady, a pious woman, with the generosity and fearlessness of her sex, concealed him at the risk of her own life and fortune, for it was known that he was in London; and if Burnet be correct, Charles II. showed on this occasion one of the few praiseworthy traits of his character. He was informed of Argyle’s retreat, but would not allow him to be sought after.—A long and interesting account of Argyle’s escape and journey to London, is given in the Life of Veitch, published by Dr M’Crie.
The privy council, to strike terror into any who complained of the injustice of the interlocutor pronounced by the court, named a committee to call his (Argyle’s) advocates before them for subscribing an opinion that his explanation contained nothing treasonable, although they themselves had given these gentlemen authority to plead freely in defence of their client. When they appeared, some proposed to imprison and deprive them; nor was it without difficulty that they were allowed to continue their practice, York observing, if any bad use were made of their written opinion by spreading it abroad in England to incense the people, or reproach him or the judges, he should consider them as much to blame. It was, however, afterwards printed in England along with Argyle’s trial, where it produced a powerful effect.
It had not been usual, nor was it deemed legal, to pronounce sentence of forfeiture in absence; but when all the essentials of justice had been violated, the council did not deem it worth while to stickle at forms. The Countess gave in a petition to the court of justiciary. It was as might have been anticipated of no avail. “Archibald Earl of Argyle was found guilty and culpable of the crimes of treason, leasing-making, and leasing-telling, and adjudged to be executed to the death; demeaned as a traitor; his name, memory, and honours to be extinct; and his arms to be riven forth and deleted out of the book of arms: so that his posterity may never have place, nor be able hereafter to bruik or enjoy any honours, offices, titles, or dignities within this realm in time coming;” and his tacks, stedings, goods, and gear whatsoever remaining to him “be escheated” to our sovereign lord, to remain perpetually with his Highness in property; which was pronounced for doom. Within seven years, the representative of Argyle was the first man in Britain—the representative of Stuart was a wanderer and a vagabond on the face of the earth!
Next day, after Argyle’s escape, Fraser of Brea appeared before the council. Returning home from the south, he had preached in a barn on a Lord’s day, for which the council ordered him to be summoned as holding field-conventicles; but on learning the true state of the case, the summons was stopped, only some of them spoke to Sir Hugh Campbell of Calder, his surety. Sir Hugh shortly after visiting his friend, found him lying sick of an ague and proposed writing to the Bishop of Edinburgh and the Lord Advocate to inform them of his situation, and get him excused. Mr Fraser, who knew the men, earnestly entreated him not to interfere, “for if the prelates hear that I am sick, they will instantly cite me, in hopes that either I cannot appear being sick, and so fall in the forfeiture of my bond of five hundred and sixty pounds, which they would gladly be in hands with; or, if I should appear, might thereby endanger my life.” His surety thought his fears groundless, and acquainted Bishop Paterson that Mr Fraser was seriously ill, and never preached in the fields. Immediately the citation was revived, and the day of his appearance fixed for the 22d of December, when they thought he certainly could not at that season come from the north, and the bond must be forfeited; but he most unexpectedly and suddenly recovered, and arrived in Edinburgh in good health, and his surety with him.
The council, astonished at his appearance, finally referred the case to the bishops, by whom he was sentenced to pay a fine of five thousand merks, be imprisoned in Blackness Castle till he paid it, and gave security not to preach any more, or go off the kingdom. He was accordingly sent to Blackness Castle, where he remained six weeks, till, upon the Duke of York’s going to England, accompanied by Bishop Paterson and his brother—his two great enemies—Mr Fraser’s friends applied to the council, and procured a liberation and a remission of the fine, upon the condition of his leaving the kingdom, which he did, and went to reside at London.