tion;" but that was opposed, as contrary to the privilege of the house; that there being no legal charge against them, they ought to have the same liberty and freedom of sitting in the house as the other members had, and neither of them to be ordered to withdraw. After much debate upon this point, it was brought to the question, Whether Mr. Whitelocke should be ordered to withdraw, whilst Mr. Hollis was under the examination of the house, and it was carried in the negative, That be should not withdraw. This question being past, Mr. Whitelocke stood up, and told the Speaker, "That since the house had done him that justice and favour, and themselves that right, in the consequence thereof; yet now to manifest the confidence he had in his own innocency, and that he sought no advantages for his own vindication in this business, he would of himself, with their leave, withdraw, whilst the house should be in the examination of Mr. Hollis." Then he did withdraw, and went up to the committee chamber, at which the house seemed to give a good approbation. Mr. Hollis was almost two hours under examination in the house, there being some particulars urged against him, which were not against Mr. Whitelocke, particularly in the matter of intelligence and correspondence with the king's party. The questions and matters upon which he was examined, were in effect but the same, which had been formerly mentioned in the house, and at the committee, to which he answered fully and prudently, and with great courage; and when they had sifted the business as much as they could with him, they gave him over, and sent for Mr. Whitelocke down out of the committee chamber to be examined. He came into the house, and then Mr. Hollis withdrew of himself into the committee chainBer, whilst Mr. Whitelocke was under examination. A multitude of questions were demanded of him, insomuch as one gentleman, Sir Peter Wentworth, asked him above thirty questions only for his part. The matters demanded of him were but the same in effect that had been mentioned formerly, and what he answered did agree punctually with what Mr. Hollis had said before. It is a very solemn thing to be examined by a house of commons, where there are so many wits, and so much odds and advantage to be taken against one single man; and that in a business of high treason, where honour, fortune, and life, are at stake. The house sare upon this business till seven o'clock at night, the earl of Essex his party, and all their friends, putting forth the utmost of their power and interest to rescue these two members from the malice and danger they were now under. And the other party of the house as earnestly labouring to be rid of them both, either by cutting off their heads, or at least by expelling of them from being any more members of parliament. They were so eager upon it, that they ordered to resume the debate of this business the next morning. July 18. The house proceeded upon the report of the lord Savile's business, and passed a vote, "That the same was ripe for judg inent," and ordered, That they would proceed to judgment thereupon to-morrow morning. July 19. The house proceeded in the lord Savile's business, and, after a long debate, upon the result, passed a vote, "That Mr. Hollis was not guilty of holding intelligence with the enemy, as was pretended, and they did fully ac quit him thereof." This gave good encouragement to Mr. Hollis and Mr. Whitelocke, and to all their friends, who would fain have brought on the rest of this business, but that it was almost nine o'clock at night, and therefore too late to proceed further in it this day. The other party, their adversaries, would have declined any further proceedings of the house in this business at this time, hoping in time to get some further evidence against them, and then to revive it; and doubting, as the present constitution of the house was, that Mr. Hollis and Mr. Whitelocke might be acquitted. Mr. Hollis and Mr. Whitelocke pressed the more earnestly to bring the business to `a final determination, whilst their friends were in town, and the house fully possessed of the business, and in so good a constitution and humour for them, and they desired not to continue under a cloud and the various discourses of people, not to be kept lingering, but to know their doom, either of condemnation or acquittal. Their friends at last with much earnestness, and against great opposition and debate, carried it by vote, to have it ordered, that the lord Savile's business should be resumed on Monday morning. July 21. The house of commons, according to their order, resumed the debate of the lord Savile's business, and after a long and warm discussing of all the particulars and arguments relating to it, they at length, upon the question, passed a vote to this effect: That it not appearing that Mr. Hollis and Mr. Whitelocke had done any disservice in their proceedings at Oxford, that therefore the remainder and whole matter of this report should be laid aside, and not to be further proceeded in. And that the said Mr. Hollis and Mr. Whitelocke should have liberty to prosecute (if they please) the lord Savile, now prisoner in the Tower, for damages." Mr. Whitelocke absented himself from the House, when they came to give their Judgment. It was observed, that generally the gentlemen of best interest and quality in the house were all for the acquittal of them, and that it had scarcely been seen before, in any other business, that this holding so many days together, yet even the gallants who used, whatever business was in agitation, to go forth to dinner, and to some other of their refreshments, yet they attended constantly all the time that this business was in debate, and would not stir from it. 175. The Trial of Sir ROBERT SPOTISWOOD, President of the College of Justice in Scotland, and Secretary there to King Charles I. for High Treason, in the Parliament held at St. Andrews, November, December, and January:* 21 CHARLES I. A. D. 1645. SIR Robert Spotiswood having been sent by the king into Scotland to negotiate matters with the marquis of Montrose, and to carry him, among other things, a Commission to be generalissimo of all his forces there, took the opportunity of the army's marching southward for his more safe return to his master, to whom he was to give an account of his negotiation; but being unfortunately taken prisoner at the battle of Philiphaugh, where Montrose's army was defeated by general Leslie, he was carried first to Glasgow, and afterwards to St. An drews, where the following Process was prosecuted against him. DITTAY against Sir Robert Spotiswood. Sir Robert Spotiswood, you are indicted and accused before the committee of estates of parliament; that for suameikleas, by the common law, law of nations, laws and acts of parliament, and practick of this kingdom; and by all justice, reasons, equity, and conscience, all that rise in arms, and concur with the adversaries of this kingdom, for subduing of their native country; all invaders, assaulters, or subduers of this kingdom, or any part thereof, by force of arms; all who contribute their help, countenance, and assistance, to the adversaries, assaulters, or invaders thereof in an hostile way: all who are either authors, abettors, maintainers, suppliers, or concurr with the adversaries of this kingdom, in the assaulting, or subduing thereof, or any part thereof; and all who are art and part of the said crimes, misdeeds, and malversations above specified, or any of them, incurr the pain of high-treason against his majesty, his crown, and against the estates of this kingdom, and the pain of forfaulture of life, lands, estate, and goods to be execute against them, by the estates of this kingdom, and the benefit thereof to be applied to the use of the publick for relief of their burdens : and He the committers of the said crimes above-specitied, or any of them, are otherwise censurable and punishable in their persons, names, and fame, and in their lands, goods, means, and estate, by fining, confining, or otherwise as the estates of this kingdom shall think expedient. And albeit, That by the acts of parliament of this kingdom, especially by the 130th act of the 8th parliament of king James 6, in May 1584, It is statute and ordained, that none of the king's liedges and subjects presume, or take upon hand, to impun the dignity and authority of the estates of parliament, or to seek or procure the innovation or diminution of the power and authority of the seamen, or of any of the estates thereof in any time coming, under the pain of treason. Likeas, albeit by the fourth act of the third parliament of king Charles, dated 29th of June 1644, all takers up of arms against the kingdom and estates of the country are guilty of treason, and punishable by forfaulture of life, lands, and goods, or any other censure the parliament shall please to inflict. Yet nevertheless, the said sir Robert Spotiswood having shaken off all fear of God, and due respect to the laws of the kingdom, and all duty, that as a subject thereof "The fury of civil wars," Mr. Laing observes, "when the battle has ceased, is almost invariably reserved for the scaffold. The number selected for execution was reduced to six [It seems that the number was seven]" president Spotiswood the archbishop's son, sir William Rollock the attendant of Montrose from England, colonel Nathaniel Gordon, sir Philip Nesbit, Ogilvy of Innercarity, Guthry the bishop of Murray's son, Murray the earl of Tullibardine's brother. Their crimes were found in those sanguinary laws against state offences, which are still flexible to the interpretation, and subservient to the interests of the prevailing party, still cruel and inexorable to the unfortunate; but by which the adherents of each may alternately suffer. The execution of Spotiswood was peculiarly unjust. had framed or brought the commission to Montrose, and accepted the office of secretary, which the parliament had formerly conferred upon Lanerk. He was convicted, therefore, of an obsolete treason, because he impugned the authority of the three estates; but his sentence may be more truly ascribed to the prostitution of his judicial character, in the Trial of Balmerino, A. D. 1634, [ante vol. 3, p. 591.] and to the suspicion to which he was obnoxious, of corruption on the bench.-Baillie, 1. 71. Parl. 1584, ch. 130, 'That none presume to impugn the dignity and the authority of the 'three estates, or to seek or procure the innova⚫tion or diminution of the power and authority ' of the same, or any of them, under the pain of 'treason. So concise, yet at the same time so comprehensive, vague, and arbitrary, were the treason laws of Scotland. This act was passed to preserve the episcopal estate in parliament, against the efforts of the presbyterians, and was employed for the execution of Spotiswood, its most active partisan. The earl of Argyle was afterwards executed on the same act, to the reproach of justice.'" [See Argyle's Case, A. D. 1681, infra]. you ought to have carried to the kingdom, and estates of parliament presently conveened by to the defence thereof, especially in these trou- vertue of the last act of the last parliament blesome times, when this kingdom has been 1641, and which proclamation annuls and conthreatened to be ruined and destroyed, with demns the procedure thereof. And als, you the hostile invasion of some of her unnatural have docqueted and signed with your hand, a brood, and some Irish rebels, and forgetting commission granted by the king's majesty to and contemning that gracious favour mentioned James Graham sometiine earl of Montrose, to in the 33d act of king Charles's second parlia- be commissioner for his majesty for holding of ment, of date 16 of November 1641, whereby the said pretended parliament: in docqueting the estates of parliament therein conveened did and signing of which proclamation, commissions then declare, that for the good and grave con- and warrants, you have abused the aforesaid siderations mentioned, they would not proceed office of secretary, and that to the derogation to a final sentence against you, for such crimes and diminution of the honour, dignity, and auand misdemeanors as at that time you were thority of the estates of parliament of this kingcited before them, and accused as guilty of, nor dom. Likcas, you not being contented with would insist upon the punishment thereof. your abusing of his majesty, in purchasing of You have presumed and taken upon hand, to the foresaid office of secretary from his majesty, abuse the king's majesty, in purchasing from contrary to his majesty's declaration in parliahis majesty by your protended ways, the office ment, in manner and at the time as said is, at of secretary to yourself, and have received the least with the taking the same upon you, and signet thereof, which was formerly keeped by the with the docqueting the foresaid commissions earl of Lanerk, who was appointed by his majesty to the said James Graham, and of the foresaid and the estates of parliament in A. D. 1641, to proclamation for the parliament; which is not be secretary to his majesty for this kingdom of only derogatory to the dignity and authority of Scotland, and that contrary to his majesty's the estates of parliament, but also destructive Declaration emitted by his majesty in the said of the whole power thereof, and which declares parliament; whereby his majesty did declare, the procedure of the estates of parliament to that he would not imploy you in any office or be treason: you have actually and really joined place of count or state without consent of par- yourself in an unnatural and traiterous way liament, nor grant you access to his person, against this kingdom, with the said James Gra whereby you might interrupt or disturb the ham and his rebellious army, wherewith he firm peace, was then so happily concluded. infested and troubled the peace of this kingdom, Likeas, since your purchasing of the said office and cruelly and unnaturally destroyed and of secretary, at least taking the samen office murdered the king's majesty's loyal subjects; upon you, and of the keeping of the signet and have been with the said James Graham at thereof, you have docquered with your hand, all the acts of hostility committed by him and signeted with the signet of the said office, se- is rebellious army within this kingdom, within veral commissions granted to James Graham the months of Angust and September last sometime earl of Montrose, a declared and 1615, or one or other of them. And in speforfaulted traitor, and an excommunicated per-cial, you was with him and his rebellious army and especially, a Commission dated the after the conflict at Kilsyth, which was upon 5th of June 1645, given by the king's majesty the 15th of August last 1645, betwixt the army to the said James Graham, making and con- and forces of this kingdom, and the said rebelstituting the said James Graham lieutenant-lious army conducted by the said James Gragovernor, and captain general of all forces rais-ham, where you did join yourself with the said ed or to be raised within this kingdom; and giving power and authority to the said James Graham, to raise and levy forces within this kingdom, and to lead and conduct them against the king's majesty's good subjects, and against the forces raised and levied in arms by authority of the estates of parliament of this kingdom, for the maintainance, defence, and prosecution of the. mutual League and Covenant. By which Commission so docqueted and signeted by you, as said is, the king's majesty's good subjects who have risen in arms for the defence of the said League and Covenant, and whose rising in arms is allowed and authorized by the estates of parliament of this kingdom, are designed as traiterous and seitious persons. And als, you have docqueted and signed with your hand, a proclamation alledged emitted by the king's majesty for holding of parliaments within this kingdom; which proclamation is totally destructive of, and derogatory to the dignity and authority of the son: VOL. IV. James Graham and his rebellious army, and was actually with him thereafter, in his progress going through the country in subduing the same, viz. From Kilsyth, to Bothwel, and from Bothwel to Calder, and from thence to Limphoy, and from thence to Cramston-riddel, and from thence to Torwoodley, and from thence to Kelso, and from thence to Jedburgh, and from thence to Selkirk, and to the fields betwixt Selkirk and Philiphaugh, where the said James Graham and his rebcilious army, were upon the 13th of September last, by the mercy of God upon his distressed people, and by the strength of his right-hand against his enemies, defeat and confounded, and where you were actually with the said James Graham and his said rebellious army; at least you the said sir Robert Spotiswood did join with the said James Graham and his rebellious army, at one or other of the saids places particularly above-specified; and during your being with the saids James Gra ham and the saids rebels the time foresaid, you 3 D did subscrive a Letter written by yourself to some nobleman about the king's person in England, of the date, from about Kelso to 10th of Sep tember last 1645, which was after the foresaid conflict at Kilsyth; wherein you boast, that you had dispersed the king's majesty's enemies within this kingdom, some of them to Ireland, and some to Berwick; whereby you do expostulate, that no party was sent after lieutenantgeneral David Lesley, who at that time came in with, and conducted forces within this kingdom for suppressing and subduing that rebellious army, wherein you were for the time: And in which Letter, you professed a resolution to follow that rebellious war whereunto you had associated yourself, and to clear the kingdom of the rebels that had fled to Berwick. By which name of rebels you did mean and express his majesty's best and most loyal subjects, within this said Letter of yours, containing many expressions of your joining the said James Graham and his rebellious army, and of your unnatural and traitorous resolution to assist the prosecution of the ruin and destruction of this kingdom, as the said Letter bears. Which crimes above-specified, or one or other of them, you cannot deny; and therefore you as a traitor to this kingdom have incurred the pain of high-treason, and the pain of forefaulture of life, lands, estate, and goods to be execute against you by the estates of this kingdom, and the benefit thereof to be applied to the use of the public, for the relief of their burdens, or otherwise, in the option of the saids estates of this kingdom, you are censuraable and punishable in your person, name, and fame, and in your lands, goods, means and estate, by fining, confining, or otherwise, as the saids estates of this kingdom shall think expedient. granted to me in the last parliament, 1641, have abused his majesty, in purchasing from him the office of secretary, contrary to the declaration emitted by his majesty in the said parliament. Likeas, since the purchasing thereof I have docqueted and signeted with the signet of the said office, the two commissions and proclamation mentioned in the Dittay: In doing whereof I am alledged to have abused the foresaid office of secretary, and that to the derogation and diminution of the honour, dignity and authority of the estates of parliament of this kingdom.. First, To this act of parliament I answer; It cannot militate against me, in regard of the scope and intention thereof; which was only to restrain the liberty which some in those times took to themselves, to call in question the power that one of the three estates then had to sit and vote in parliament. Which is clear, both by the preface of the said act, viz. "Finding the power, dignity and authority of the court of parliament of late years called in some doubt; at least some curiously travelling to have introduced some innovation thereanent," and by other records of that time; especially a declaration of the king's, yet extant in print, published in anno 1585. In which he who knew best what was meant thereby, declareth this to have been only the parliament's intention in making of this act. So that it cannot be extended to other cases, namely this in hand. Secundo. Giving, that this act of parliament could be extended beyond the true intent and meaning thereof; yet the particular deeds libelled, whereby I am alledged to have transgressed the same, and consequently to be guilty of treason, are not relevant to import so much. And first, whereas to aggravate the Glascow, 5th November 1645. matter, I ain charged to have been unmindful The Committee ordains the Dittay to be and unthankful for the favour I received at the transmitted, sent and delivered to the above-last parliament: Let me say this much withwritten sir Robert Spotiswood, where he is presently in the castle of Glascow; and ordains the said sir Robert to be ready to answer to the said Dittay. At St. Andrews, upon the 13th of November instant 1615. Sic subscribitur JA. PRYMROSE. ANSWER to the DITTAY given in against Sir Robert Spotiswood. In regard the defences given in by James Ogilvie, against the relevancy of his Dittay, will militate likewise in my behalf, I repeat the same for me brevitatis causa. This of mine is founded upon two acts of parliament, the one in May 1584, and the other in June 1644. By the first, it is declared to be treason, to impugn the dignity and authority of the estates of parliament, or to seek and procure the innovation or diminution of the power and authority of the samen, or any of the estates thereof. It is subsumed, that I have forefaulted against this act, in so far as I, forgetting and contemning the favour out offence, that as I esteem highly of their favour, so I was not obnoxious to their censure at that time: Whereanent I refer myself to that process, wherein nothing was proven of all that was alledged against me. As to the purchasing of the secretaries office, what passed about that, and how far I had interest therein, I remit to the declaration given in by me to the committee at Glascow, which I use as a part of my defence against this point. The truth is, that the lord secretary being from court at the time, and there being sundry solicitors to his majesty for grants of divers natures, having relation to this kingdom, he was pleased, there being none then about him fit for the employment, to intrust me with a sighting and presenting the same unto him, by sending me a warrant under his sacred hand unto that effect, and the signet withal, to be kept by me during the absence of the secretary, or while his majesty should take further order thereanent. In accepting whereof, I cannot imagine that I did commit any thing worthy of blame; or that his majesty here (neither can be) called in question for that which usually the ministers of princes have been charged with (viz. giving of bad counsel) but only for docqueting and signeting these three warrants, which I could not in duty refuse, being commanded by his majesty to do the same. To the third and last commission I make the same answer. did any thing contrary to the declaration emitted by him in parliament, he having conferred no ordinary place or office upon me, but only a temporary employment in casu necessitatis, having none else for the time to lay it upon. Likeas I see not how I can be charged with presumption, as the Dittay bears, in doing thereof; in respect that by natural allegiance, from which no power under Heaven can loose me, I am bound to serve and obey his The second act of parliament, whereupon majesty whensoever he calls upon me for that this dittay is founded, is in June 1644, bearing, effect. And as to that part of his majesty's that they who take up arms against the kingdeclaration, not to grant me access to his dom and estates of the country, are guilty of person; it was never his intention otherwise treason. For answer to this part of the dittay, but in the case annexed, viz. whereby I might I say, it is not relevantly subsumed, that I took interrupt or disturb the firm peace then so up arms against the kingdom: only it is alhappily concluded; which, I thank God, ledged, that I was in company with James never so much as once entered into my thought, Graham in his progress through the country, as my own conscience, and my behaviour about after the conflict at Kilsyth, which by no interhis majesty this while past doth bear me wit-pretation, can be thought to be a taking up of ness. Besides his majesty's declaration, that he should not give any access to those therein mentioned, is not a penal statute, or act of the estates, disabling or restraining them to repair to his majesty, under any pain or certification in case they should contraveen, but only a declaration emitted by his majesty himself, that he would not adinit them to the end expressed in the act. And therefore the same is inept to be the ground or aggravation of a criminal Dittay. As for docqueting and signeting commissions, and other warrants presented by me, I hope in itself it is no crime, although I was not actual secretary, I having done it by his majesty's special and express command. For the three particulars chopt at in the dittay, I can answer: first, To the commission of lieutenantry docqueted by me, it is but a double, as the docquet, I believe, bears, the principal having been sent long before by the English secretary, who was the sole mover and procurer of it. a Next, To the proclamation for holding parliament, it was drawn in terminis by his majesty's special direction, and docqueted by me, as it is, blank in day and place, and other circumstances; his majesty's intention in it being only this, to have it come to his hand, to whom it was intrusted, who by special order was to dispose of it, as should be found best for the peace of the kingdom, without derogation to the standing laws thereof: neither hath there any use at all been made of it, he having indicted a parliament before it came to his hands, by virtue of a precedent warrant. Wherein it may seem to annul and condemn the procedure of the estates of parliament presently conveened, or be otherwise destructive and derogatory to the dignity and authority thereof, it is not my part to meddle with, his majesty being most concerned therein, whose business it is, I having no further hand in it, but in so far as I was obedient to my master's directions; which by no law or act of parliament can bring me within the compass of the least censure, let be the guilt of treason. Tor I am not arms against the kingdom; especially since I was directed to him from his majesty, and by that occasion, and none other, was with him in company. Secundo, In the act itself, it being propond in the quere, Whether assisting, or taking arms with those who have invaded the country, shall be relevant to make up a dittay against the doers thereof, no answer is given thereunto by the parliament; which imports as much, that they thought it not reasonable to make the assisters of such as are in arms against the kingdom and estates, guilty of treason: if not their assisters, far less such as were only in company with them occasionally, as I was. As to the Letter written by me about Kelso, whatever be in it, it cannot be charged upon me; because it went no further than intention, I having upon better thoughts called it back, in regard of some expressions in it, which might seem injurious to those engaged on the other side. For whatever I think of the course, I thank God, I hate no man's person that is embarked therein, nor could wittingly irritate the meanest of them by any opprobrious compellation. Always the most can be in it, is inadvertancy. To close all, in all this dittay, laying aside the second act, which I hope is sufficiently answered, I am not charged with any thing that is declared by any law or act of parliament to be treason, which by the 28 act, 1641, is required, before any person can be declared a traitor. These answers for your lordships satisfaction, I have given in presently, under protestation, that (in respect I have been straitened with time, and could not gather my thoughts so well as was requisite) I shall be heard to alledge what further I can bethink myself of, before the closing of the process, either by writ or word, as your lordships shall be pleased to allow. REPLIES to Sir Robert Spotiswood's Answers to his Dittay, 12 December 1645. Where the defender repeats the defence |