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Year 1641
Leasing making was a statutory
crime, the invention of tyranny. It meaned originally ' the
making, or uttering of lies, tending to breed discord between the King
and his people.' So early as the reign of James I, of Scotland, it
inferred a capital punishment, and the offence was the same, whether the
calumnies were uttered of the King to his people, or of the people to
their King. In succeeding reigns new meshes were added to this
snare for life and liberty. Every one who misconstrued the King's
proceedings, or
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who failed to inform upon
those guilty of leasing-making, were caught within the net. And it
was not till after the death of King William, that the penalty of
transgressing these laws was restricted to an arbitrary punishment.
In the year 1641, the Earl of Argyle, with concurrence of his
Majesty's Advocate, brought a criminal indictment against the prisoner
for leasing-making, committed by the inventing and uttering of
calumnious reports, charging that noble Lord with slanderous speeches
and disloyal pursuits.
The origin of this trial thus described by a contemporary writer of
good authority. One Graham, a minister
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was challenged before the committee of parliament, which met on the 26th
of May 1641, for uttering speeches defamatory of the Earl of Argyle.
On being challenged, he named as his informer another minister of the
name Murray. Murray declared that he had the report from the Earl
of Montrose. Montrose acknowledged it; declared the report to be,
'that the Earl of Argyle had got some young lawyers, and others in his
name, to present bonds to sundry classes of men, obliging themselves to
follow the Earl of Argyle as their leader, without any reservation of
the King or of the State; and that the Earl of Argyle had said, that the
parliament, at their last meeting, had consulted lawyers and divines
about deposing the King; that they had intended to have done it as the
last session of parliament, and would do it on the next.' The
indictment added, that the prisoner had sent an account of the whole to
Lord Traquair, to be laid before the King. Montrose declared, that
Lord Argyle made those speeches in his own tent at the Ford of Lyon, in
presence of the Earl of Athole, and eight gentlemen, whom he had made
prisoners: That one of these gentlemen was the prisoner, Stewart, and he
offered to produce him as his authority.
Immediately on this declaration, Montrose dreading that the prisoner
might be tampered with to retract what he had said, to exculpate Argyle,
and leave Montrose in the lurch, sent some gentlemen for him. They
brought him to Edinburgh on the 30th of May, and next morning he
appeared before the committee of estates, and subscribed a declaration,
asserting all that Montrose had affirmed in his name. Argyle, with
many oaths, and much passion, denied the whole; and the prisoner was
committed to custody in Edinburgh Castle.
In a few days, Lord Balmerino, and Lord Dury, one of the Lords of
Session, were deputed by the committee to examine the prisoner; and,
whatever may have passed at this examination, the prisoner next day
wrote a letter to Argyle, exculpating him from the slanderous speeches
alledged to have been made at the Ford of Lyon, acknowledging the whole
to have been a malicious fabrication of his, the prisoner's, and
declaring further, that by advice of Montrose, Lord Napier, and others,
he had transmitted an account of it to the King. And to this he
adhered, in a declaration before the committee of estates. On the
11th of June, Montrose, Napier, &c., were imprisoned in Edinburgh
Castle, and, on the 21st of July, the prisoner, at the instance of the
Earl of Argyle, was tried for his life.
Argyle's counsel produced in Court an order of parliament requiring
the justices to proceed in the trial, not withstanding it was contrary
to form for
*** the Court to sit during the
meeting of parliament. They produced also a commission from
parliament, appointing Lord Elphingstone, the Laird of Aithernie, John
Semple, and Sir James Learmonth of Balcomie, assessors to the justices.
The indictment charged the prisoner with the slanderous speeches
against Argyle, mentioned above. It also set forth that for these
offences he had been already called before a committee of parliament,
and had not only acknowledged his having expressed these calumnies both
by word and writing, but also that they were false and groundless
inventions contrived by himself: That the committee had thereupon
pronounced a decree, declaring these speeches to be false and
scandalous: That the prisoner was author of them: That he
had thereby committed the crime of leasing-making; and, therefore, the
committee of parliament remitted him to the Justice Court to be punished
accordingly.
The first plea which the prisoner urged was, 'that the crime of
leasing-making consisted in defaming the King, not in slandering the
subject;' but this, like his other defences, was false, or frivolous,
for the tyrannical statutes extend it to both cases. He pleaded,
2dly, That it behoved the King's advocate to have a special warrant from
his Majesty, before he could grant his concurrence to a prosecution
raised by an individual on account of his private injuries - a position
altogether repugnant to law and practice. And, lastly, he alledged,
That it was not the committee, but the parliament, that had power to
pronounce a decree, an argument altogether frivolous, seeing that the
Justice Court were competent to pronounce a judgment in the case,
although no guilt had been found either by committee, or by parliament.
The prisoner was much more decisive in the steps he took against
himself. He repeated before the jury his former confession; and he
humbly implored the Earl of Argyle's pardon, and offered to make every
acknowledgement.
The jury found the libel proved, and the Court sentenced him to be
beheaded at the Cross of Edinburgh on the 28th of that month, and the
sentence was executed accordingly.
As the prisoner's arguments during the trial were frivolous, so his
behaviour between the sentence and its execution betrayed great
irresolution. It was alledged that he had been induced to take the
guilt upon himself, upon the promise of indemnity
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in order to screen Argyle from the odious imputation in the speech which
Montrose had repeated before the committee of estates: That Sir
Thomas Hope advised Argyle, that, if the prisoner was screened from
punishment, the world would believe he had been bribed to retract his
declaration before the parliament; and, therefore, the prisoner's life
was a sacrifice requisite to Argyle's vindication; and that the prisoner
underwent the most violent conflict of passions, upon finding, that, by
his own false testimony, he had been outwitted of his life. Be
this as it may, it certainly shocks us to find a person who took such an
active part in the civil wars of Charles I, which terminated in the
murder of the King, and overthrow of the state, prosecuting unto death a
man for reporting traiterous speeches of him; and it ought no less to
warn us against the establishing or countenancing iniquitous precedent,
since we little know how soon it may be converted into an engine for our
own destruction. For the son of this very
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prosecutor fell by an iniquitous sentence on this very charge of
leasing-making. |
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