[142]. Fountainhall’s Decis. vol. i. p. 156.
When the test came to be imposed, Scotland presented the appalling scene of an almost universal compliance among her men in office; yet even among them there were a few names who defiled not their garments. John Hope of Hopeton, who had the honour of being deprived of the Sheriffdom of Linlithgowshire—the excellent Duchess of Rothes, who though strongly urged, decidedly refused—besides several others. Queensberry took it with an explanation, “that he did not understand himself to be against any alterations in case it should seem good to his majesty to make them in church or state.” The Duke of Hamilton also had his scruples, but was willing the council should name deputies in any jurisdictions belonging to him, which they did. The Marquis of Huntly positively refused to take it; but being a papist, he was passed over. The opposition, however, made by the synod and Bishop of Aberdeen, the synod of Perth and Bishop of Dunkeld, and a number of the Episcopalian clergymen, who for the first time appeared in opposition to the court, induced Paterson, bishop of Edinburgh, to prepare an explanation, which was approved of by the council, purporting “that by the test we do not swear to any proposition or clause in the said Confession of Faith, but only to the true protestant religion, founded on the word of God, contained in that Confession, as it is opposed to popery and fanaticism; that no encroachment is intended upon the intrinsic spiritual power of the church, as it was exercised by the apostles in the three first centuries; nor any prejudice to the episcopal government of this national church.” The precise and unalterable obligation at the close, however, was so decisive, that many who would have scrupled little at common obligations, were startled at this; and, to the honour of the conformist clergy, not less than eighty rather surrendered their livings than their conscience; and “these were noted to be the best preachers, and the most zealous enemies to popery, that belonged to that church.”
The Presbyterians decidedly refused it. Nor could they act otherwise, without deserting and betraying their religion. Argyle, who saw all this, unfortunately did not act with that decision which is often, if not always, the safest, though frequently not the most pleasant or easy mode of procedure, and at once resign his employments. He endeavoured to evade taking it, by offering an explanation, as had been done by the synods and conforming clergy; and his proposal was accepted graciously by the Duke of York, who at the same time told him the oath was such as no honest man could swear. His explanation was:—“I have considered the test, and am desirous to give obedience as far as I can. I am confident the parliament never intended to impose contradictory oaths, therefore I think no man can explain it but for himself. Accordingly, I take it in as far as it is consistent with itself and the protestant religion; and I do declare I mean not to bind up myself in my station, and in a lawful way to wish and endeavour any alteration I think to the advantage of the church or state.” No remark was made at the time, and the Earl took his place as a privy councillor; but next day, when he waited upon the Duke, he was told his explanation was not satisfactory. “I thought,” said his Royal Highness, “it was to have been a short one like Queensberry’s. Well! it passed with you, but it shall pass so with no other.”
The unsuspecting Earl understood this as an harmonious finale to the matter; but he knew not with whom he had to deal. On the same day he was called before the council as a commissioner of the treasury, and again required to take the test. He offered to do so in the same manner as he had done before, but was sternly refused. “You and some others,” said the Duke of York, “have designed to bring trouble upon a handful of poor catholics, who would live peaceably, however they are used! but it shall light upon others,” and walked off, after desiring the Earl not to leave town till he saw him again. Next day he was ordered by the council to enter himself prisoner in Edinburgh Castle before twelve o’clock, and the Lord Advocate was instructed to pursue him for treason. They also sent an account of their proceedings to the king for his approbation, which they received in course, only desiring that no sentence should be pronounced until submitted to him. His trial, which lasted two days (12th and 13th December), immediately commenced; and a more nefarious one does not disgrace the justiciary records.
In common, there is some appearance of crime in the charges brought by a public prosecutor, however distorted by legal subtlety; but not the shadow of a fault could be made to appear against this nobleman, in so far as his loyalty was concerned. Here, if in any thing, his failings leaned to the royal side; and when it is considered what his family had suffered for the royal cause, and by the royal personages, both “the blessed martyr” and his profligate son, it is wonderful that any of the house of Campbell could ever have been found in the ranks that supported the Stuart race.
His indictment was founded, among other acts, upon that of James VI. 205 act, parliament 14, by which all leasing-makers and tellers of them[[143]] are punishable with tinsel of life and goods; and 107, James I. parliament 7, which ordains that no man interpret the king’s statutes otherwise than the statute bears, and to the intent and effect that they were made for, and as the makers of them understood; and whoso does in the contrary, to be punished at the king’s will; and the 10th act, parliament 10, James VI., by which it is statuted, that none of his majesty’s subjects presume to take upon him publicly to declare, or privately to speak or write, any purpose of slander against his majesty’s person, laws, or acts of parliament, under pain of death. And his explanation of what all allowed to be a contradictory act of parliament, was, from the most unnatural distortion and forced construction of the words by that base unprincipled slave of the court, Sir George Mackenzie, tortured into treason:—
[143]. i. e. Liars or tellers of lies. What would have become of the royal brothers had they been tried upon this statute?
“You the said Archibald Earl of Argyle declared that you had considered the said TEST, and was desirous to give obedience as far as you could, whereby you clearly insinuated that you was not able to give full obedience. In the second article, you declare that you were confident the parliament never intended to impose contradictory oaths, thereby to abuse the people with a belief that the parliament had been so impious as really and actually to have imposed contradictory oaths; and so ridiculous as to have made an act of parliament (which should be the most deliberate of all human actions) quite contrary to their own intentions; and that every man must explain it for himself, and take it in his own sense, which is a settling of the legislative power in private subjects: that you take the test in so far only as it is consistent with itself and the protestant religion, by which you maliciously intimate to the people that the said oath is inconsistent with itself and the protestant religion, which is not only a downright depraving of the said act of parliament, but likewise a misconstruing of his majesty’s and the parliament’s proceedings, misrepresenting them to the people in the highest degree, and in the tenderest points implying that the king and parliament have done things inconsistent with the protestant religion, for securing of which that test was particularly intended. In the fourth article, you expressly declare that you mean not by taking the said test to bind up yourself from wishing and endeavouring any alteration in a lawful way, that you shall think fit ‘for the advancing of church and state,’ by which you declare yourself, and by your example invite others to think themselves, loosed from that obligation, and think it is free for them to make any alteration in either as they shall think fit; concluding your whole paper with these words, ‘and this I understand as a part of my oath,’ which is a treasonable invasion upon the royal legislative power, as if it were lawful for you to make to yourself an act of parliament, since he who can make any part of an act may make the whole.”
The Earl’s speech, after the indictment was read, was manly and noble. It contained simply a general sketch of what he had done for the royal ingrates, and the consequent improbability that he who had evinced such unshaken loyalty in the worst of times, should now be guilty of gratuitous treason.
Sir George Lockhart and Sir John Dalrymple followed in plain luminous speeches, such as it is impossible to conceive how minds of common construction could withstand the force of the reasoning, and the effect of the downright statement of facts, which give to them, in perusal, a power beyond what any artificial eloquence could bestow; yet such was the deadening effect of a wretchedly supposed self-interest, that the bench divided equally—two, Newton and Forret, voting for, and two, Collington and Harcarse, against, the “relevancy of the libel;” and they remained until midnight discussing the subject, nor were able to come to a decision. Queensberry, who presided as Justice-General, having himself received the test with an explanation, declined to vote, as, in condemning Argyle, he must have condemned himself; yet to acquit him would have been to forfeit the favour of the court, and he preferred having his name registered with infamy, to acting the part of an honest man. In this dilemma, Nairn, an old superannuated judge, who had fallen asleep during the trial, and had been under the necessity of retiring from the bench, because, through infirmity, he could not follow the proceedings, was dragged from his bed and called upon to give his casting vote. Next day, the interlocutor was pronounced—“sustaining the charges as relevant, repelling the legal defences against treason and leasing-making, and remitting the indictment, with the defence against perjury, to the knowledge of an assize.”